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RICHARD HENRY DANA, JR. 

{Author of " Two Years Before the Mast ") 

SPEECHES IN STIRRING TIMES 

AND 

LETTERS TO A SON 



EDITED, WITH INTRODUCTORY SKETCH AND NOTES 

BY 

RICHARD H. DANA (3d) 




BOSTON AND NEW YORK 

HOUGHTON MIFFLIN COMPANY 

(^tt Stitier^iDe prz^^ Cambctii0e 

1910 






COPYRIGHT, 1910, BY RICHARD H. DANA 
ALL RIGHTS RESERVED 

Published November iqio 



©CI,A278098 



PREFATORY NOTE 

Those who have followed Mr. Dana as a sailor in 
his *' Two Years Before the Mast " may have a special 
interest in following him as a lawyer, publicist, states- 
man, and father in the Speeches and Letters. 

In the Introductory Sketch and the Notes, I have 
freely stated what I thought, without reserve. I be- 
lieve the facts will warrant all the statements; but I 
have not held back from saying what was in my 
mind or heart for fear of any bias I may have in 
writing of a much beloved father. 

Let the reader, now that he is forewarned, forearm 
himself with as many grains of chloride of sodium as 
he desires. 

R. H. D. 



CONTENTS 

I. Introductory Sketch 1 

II. Journal Entries of Conversations with "Uncle 
Edmund"; Pitt, Fox and Sheridan in Parliament. 
Washington's Laughter 64 

III. The Bible in Schools 69 

IV. Speech on the Judiciary; Massachusetts Constitu- 

tional Convention of 1853 78 

V. Usury Laws. February 14, 1867 117 

VI. Boston Free Soil Meeting. 1848 145 

VII. Buffalo Free Soil Convention. 1848 149 

VIII. The Great Gravitation Meeting; a Parody on the 

Fugitive Slave Law 164 

IX. Argument on Behalf of Charles G. Davis; Fugitive 

Slave Rescue Case 178 

X. Against the Rendition of Anthony Burns to 

Slavery 210 

XI. The "Grasp of War" Speech. June 21, 1865; Basis 

for Reconstruction 234 

XII. The Prize Causes. Enemy's Territory and Alien 

Enemies 273 

Xin. Rufus Choate 288 

XIV. The Monroe Doctrine 295 



EICHAKD HENRY DANA, JR. 

1815-1882 



INTRODUCTORY SKETCH 

Mr. Charles Francis Adams in 1890 wrote a strik- 
ing biography of my father, and for this our family is 
deeply indebted to him. It was then planned that I 
should publish, as a supplement, my father's speeches. 
They had a far more permanent value than most liter- 
ary remains. They dealt with important matters, on 
broad, permanent principles. Many were on subjects 
still before the public to-day, such as the appoint- 
ment of judges for life as contrasted with election for 
terms of years, the inutility of usury laws, the use of 
the Bible in the public schools, and the true principles 
of the Monroe Doctrine. Others were on subjects hav- 
ing a lasting historical value, such as the arguments in 
the Fugitive-Slave cases, his Lexington Oration, his 
addresses on Edward Everett and Rufus Choate, the 
arguments on the Prize Causes, and the speeches just 
before the outbreak of the Civil War and on the begin- 
ning of the Reconstruction Period. There were also 
letters from my father to me, which I believe are 
models to aid fathers generally in dealing with sons. 

The project, however, of publishing a selection of 
these was delayed some sixteen years by one of those 
curious and provoking accidents that happen in the 
best regulated families. Mr. Adams returned, by ex- 



2 RICHARD HENRY DANA, JR. 

press, addressed to my mother's house in Cambridge, 
the letters, journals, speeches, etc., mostly contained 
in a large, bright green, sheet-iron box, in which they 
had been sent to him. When I came to look for them, 
they were nowhere to be found. None of my mother's 
family or servants had seen this green box since it was 
sent to Mr. Adams. They lit a candle, swept the house 
and searched diligently, but found it not. Besides the 
loss of letters, some of the addresses preserved were 
only in the form of newspaper clippings, with correc- 
tions by my father, impossible to be replaced. About 
two years ago, being in the L attic of my mother's 
house in search of some papers, a bit of bright green, 
in the very eaves, caught my eyes. I climbed over 
trunks and discarded furniture, through dust and cob- 
webs, and there was the missing box ! Eagerly I dragged 
it out and opened the cover, there to find all intact. 
After this, who does not believe in ghosts .^^ 

With regard to the letters from a father to his son, 
the question arose, should I publish these or not? 
I submitted them, with an introduction showing how 
my father had dealt with me at critical times of my 
youth, to several friends. The advice I received was 
most contradictory. Some said, the cold unsympa- 
thizing world would ridicule my frankness, deride 
my youthful faults, and at best consider the whole 
a string of trifling details, not worth the printing. 
Others thought they would be a great help to perplexed 
fathers in the difficult task of training their boys, 
and that if published, there would be many grateful 
fathers and many more well-brought up sons. For 
the possible, and I believe probable, good that these 
letters might do, and also as showing another side of 
my father's character not brought out in the bio- 



INTRODUCTORY SKETCH 3 

graphy or in the speeches, I have decided to lay aside 
personal feelings, run the risk of caustic criticism, and 
publish these letters and an introductory explanation, 
for better or for worse. 

As to Mr. Dana's dealing with permanent principles, 
a late eminent jurist, who had known him as a student 
in the Harvard Law School, said that Dana thought 
out his moot-court cases on fundamental principles, 
and sought the underlying philosophy of jurispru- 
dence. My father told me that, in a case of doubtful 
law, he first made himself master of all the facts, then 
worked out the reasoning that should apply, and last 
of all looked up the precedents, and in the light of 
the principles he had evolved, could best weigh and 
arrange the authorities. By pursuing a contrary 
course, he said, and going first to the cases and text- 
books, one would become lost in a thicket of under- 
growth. 

By this mental process, he, when twenty-nine years 
of age, worked out the true rule of law regarding the 
burden of proof in criminal trials, in the Peter York 
case. 1 Peter York was charged with murder, and Mr. 
Dana defended him. Mr. Dana urged that upon the 
government lay the burden of proving, beyond rea- 
sonable doubt, the malice aforethought as well as the 
mere killing. The language employed in the legal 
text-books and in the published judicial opinions was 
opposed to Mr. Dana's contention, and the majority 
of the Massachusetts Supreme Court then decided 
against him; but Mr. Dana's view has prevailed, as 
will be told more fully farther on in this sketch, and is 
now the law of the land. 

In 1854 the law of collision at sea as between a 

* 9 Metcalf, 89 (1845). 



4 RICHARD HENRY DANA, JR. 

sailing vessel and a steamer had been settled, as it 
was supposed, by a decision of the celebrated English 
Admiralty judge. Dr. Lushington. Mr. Dana, in the 
case of the Osprey, before Judge Sprague, took the 
stand that Dr. Lushington's opinion was wrong. He 
not only had the English decision overturned and won 
his case in an American court, but his rationale is now 
the established law of the high seas for all nations. 

In the celebrated Prize Causes during the Civil 
War, there seemed to be a dilemma. Without the 
power to stop commerce of neutrals with the Southern 
Confederacy, the war would be indefinitely protracted. 
The usually accepted definitions of the law of prize 
and blockade, neutrals, and belligerents, riots, war, 
and insurrection, seemed to make it impossible to 
condemn blockade-runners as prizes without acknow- 
ledging the Confederacy as an independent nation. 
This would have given the Confederacy great advan- 
tages in dealing with foreign powers, to say nothing 
of its being inconsistent with our denial of a consti- 
tutional right of secession. Thus arose a crisis in the 
Civil War as real as the battle of Gettysburg. The 
Justices of the Supreme Court of the United States, 
though feeling that the power of blockade ought to be 
justified, were unable to satisfy themselves on what 
legal grounds it could be sustained. Mr. Dana argued 
for the power of blockade. Judge Grier, who wrote 
the opinion of the court, unanimously sustaining Mr. 
Dana's contentions, afterwards said that Mr. Dana 
had cleared up all their doubts. In the note to the 
Amy Warwick and " Enemy 's Territory " will be found 
w^hat was said of this argument by the court and mem- 
bers of the bar who were present, and an explanation 
of the points involved; but it is enough for the present 



INTRODUCTORY SKETCH 5 

to say that Mr. Dana developed "the philosophy of 
the law of prize" by excavating to the very founda- 
tion of that law, and showing, when uncovered, its 
real simplicity and unity, and that the confusion had 
existed chiefly in the definitions under which the true 
principles had lain concealed. 

Mr. Dana's speech in the Massachusetts Legisla- 
ture on the usury laws ^ is another illustration of his 
power of thinking out on broad principles. He was 
not a profound student of political economy, though 
somewhat of a reader and ponderer on it, and yet, to 
use Mr. Adams's words in the Life,^ this speech is 
"one of the most admirable presentations of the argu- 
ment against usury laws which has ever been made," 
and "it has since been printed repeatedly, and is still 
one of the documents in use wherever the question 
... is under discussion." 

At the close of the Civil War arose another di- 
lemma. That was how we could preserve the fruits 
of the war without acknowledging the right of seces- 
sion. Mr. Dana, in his speech on the "Grasp of War," 
put the situation on what seems to be the most philo- 
sophical ground. 3 In that speech he also advocated 
an educational and property qualification for negro 
voters, a measure which it is now generally believed 
would have been the sane, wise course to have 
adopted. It pleased neither extreme at the time, 
however, and it was the extremists, both North and 
South, that had the majorities in those times of 
excited feeling. 

In the debates in the Massachusetts Constitutional 
Convention in 1853, he went "quite into the meta- 

^ See vost, p. 117. ^ Vol. ii, p. 337. 

^ See notes to "Grasp of War" speech. 



6 RICHARD HENRY DANA, JR. 

physics of a constitutional government." Mr. Rufus 
Choate said of Mr. Dana's speech on the Judiciary, 
"It is philosophical, affecting, brilliant, logical, every- 
thing." 

Besides this power of original thought, is his power 
of logical and orderly arrangement, with a sense of the 
picturesque and striking. This we see carried out not 
only in his "Two Years Before the Mast," and in his 
journals of travel, in his account of the court-martial 
of Commander Mackenzie for hanging Spencer and 
others, printed in the Life,^ for example, but even in 
treating of technical and abstruse subjects. As an il- 
lustration of the latter is his article in the "American 
Law Review" of 1871 on the "History of Admiralty 
Jurisdiction in the United States." ^ There the reader 
is led on to see the steps, one by one, by which the law 
was developed into a complete and consistent whole, 
the predicaments into which some of its own early 
decisions put the vSupreme Court, and the ways taken 
by that court to extricate itself. The article is some 
forty pages; too long to reprint in this collection. It 
shows how a technical subject may be dressed in 
simple, every-day language, so as to meet the ordinary 
reader on even terms. This treatise carries one along 
with an absorbing interest, like that created by a well- 
constructed detective story. 

I, personally, shall never forget his clear and patient 
explanation of the rig of sailing vessels, how the square 
sails were worked in tacking, box-hauling, and the like, 
or the methods of calculation of position at sea, told 
while walking the beach or piazza at Manchester. 
When I was sailing round the Horn in 1879-80, 1 used 

^ Vol. i, pp. 47-70. 

^ American Law Review, vol. v, No. 4, July, 1871, pp. 581-621. 



INTRODUCTORY SKETCH 7 

to take the observations for latitude and longitude; 
and I well remember, for example, how, with the 
picture in mind which he had drawn in words only, I 
avoided the mistake which the second mate made 
when passing south of the sun and reversing condi- 
tions. 

In addition to the natural powers of mind and 
trained habits of thought, quick observation, and or- 
derly arrangement, Dana's writings are enriched by a 
wealth of historical, literary, classical, and philosophi- 
cal illustration, used, like gestures, with discretion. 
His rule was to use neither gestures, quotations, nor 
allusions, unless helpful to the presentation of his sub- 
ject or required by the occasion; never for show. 

Mr. Dana was born and lived in a veritable garden 
of literature, where there were great trees, hardy per- 
ennials, and many sweet annuals, whose memory 
hardly lasts beyond the seasons they blessed, but 
whose influence with him was none the less potent. 

To begin with, he was born in one of the "literary 
families," as Colonel Thomas Wentworth Higginson 
calls them. His father, Richard Henry Dana, Senior, 
was a poet and essayist. He was one of the founders 
of the "North American Review," the first literary 
magazine in America to last. He lectured on Shake- 
speare, maintaining, against many authorities of the 
time, that Shakespeare w^as the greatest poet in the 
English language. Literary and philosophical discus- 
sion and criticism formed the staple family talk, as 
society gossip does in some circles, and reading aloud 
was the most common entertainment. The elder 
Dana kept up his varied, voluminous, and critical 
study until the last week of his long life of over ninety- 
one years, and my father, even after his marriage and 



8 RICHARD HENRY DANA, JR. 

in the busiest parts of his hfe, was a frequent caller at 
''Chestnut Street" or visitor at the "Shore," as he 
named the homes of my grandfather in Boston and at 
Manchester-by-the-Sea. 

The elder Edmund T. Dana, his father's brother, 
was a delightful talker, humorist, traveler, and reader, 
whose literary judgment was much sought after. He 
greatly resembled, so Mr. Charles Eliot Norton said, 
our delightful John Holmes. This Edmund T. Dana, 
Senior, had listened to many great Parliamentary 
speeches and debates of his generation. He had talked 
with authors and painters in the England of his day, 
and is said to have had remarkable powders of imita- 
tion and narration. 1 

Mr. Dana's aunt. Miss Martha Dana, had, in 1830, 
when Dana was fifteen years old, married Washington 
Allston, whose prose and verse were as remarkable as 
his painting. Allston was a personal friend of Samuel 
Taylor Coleridge, Wordsworth, Washington Irving, 
Verplanck, Sir Thomas Lawrence, Collins, West, 
Leslie, Hazlitt, Charles Lamb, Turner, Thorwaldsen 
and other ^ painters and authors of, or frequenting, 

^ Some journal entries of conversations with this "Uncle Edmund" 
are appended to this sketch. 

^ It may be suggested that I should have included Keats, Shelley, and 
Byron. Sweetser, in his Washington Allston, quotes Vanderlyn as telling 
how Allston frequented the famous Cafe Greco in Rome with Turner 
and Fenimore Cooper in 1805, and adds, "There, too, were to be seen 
Shelley, Keats, and Byron." This is a mistake if it means they were to 
be seen there in 1805, the only year Allston was in Rome, for Shelley was 
born in 1792 and would have been but thirteen years old, and did not 
leave England for Italy until 1818; Keats was born in 1795, and was but 
ten years old in 1805, and set sail for Italy in 1820; and Byron's first 
trip to Italy was in 1809. Allston may have met them in England before 
he returned to America in 1818, but of this we have no record. 




y^c^. ^c^^i^ 



J'/7S> -W43 



INTRODUCTORY SKETCH 9 

the old world. He sent and received letters from 
some of them while he resided in Cambridge. All this 
made such men seem real, while Allston's charm, so 
fascinating to his associates, made a young man like 
his nephew, Dana, fall in love with the humanities. 
"All my childish notions of Europe," writes Mr. 
Dana, on the death of his Uncle Edmund in 1859, 
*'were derived from him and Mr. Allston and my 
Uncle Francis. From them I heard of Pitt and Fox, 
of Nelson, of Mrs. Siddons, John Philip Kemble, 
Coleridge and Wordsworth and the painters. At his 
room, on the green, in the old Trowbridge home, Ned 
and I used to spend evenings listening to him and 
Allston and such chance visitors as gathered there." 

Miss Charlotte Dana, my father's elder sister, was 
a woman of remarkable literary and philosophical 
mind, wuth rare musical taste and discrimination; and 
his brother, Edmund, first scholar of his class at Bur- 
lington College, Vermont, a student for many years at 
Heidelberg University in Germany, where he got a 
doctor's degree " summa cum laude," and an accom- 
plished gentleman, was one who made a deep impres- 
sion on all who met him, for his varied acquirements 
and keen powers of mind. 

In that family life there was also an abundance of 
wit, laughter, fun, humor, to offset the more serious 
side of literature and art. 

Such was the immediate family group; but beyond 
was the greater part of this remarkable literary garden 
of which I have spoken. To any one caring enough in 
literature to take this book in hand, and wanting to 
know the kind of flora that flourished there, it suffices 
merely to name as friends or acquaintances of Mr. 
Dana, whom he met often in Cambridge, or Boston 



10 RICHARD HENRY DANA, JR. 

and the other suburbs of Cambridge, Longfellow and 
his wife, Mr. and Mrs. James Russell Lowell, Emer- 
son, Oliver Wendell Holmes, John Holmes, the Nor- 
tons, Wheatons, Willards, Greenoughs, Charles and 
George Sumner, Bancroft, Prescott, Sparks, Palfrey, 
Ticknor, the Quincys, the Adamses, Everett, William 
Ellery Channing, Professor E. T. Channing, Harri- 
son Gray Otis, Thomas W. Higginson, the "young 
Professors Child, Lane, Cooke, and Gould," Agassiz, 
Rufus Choate, Dr. S. G. and Mrs. Julia Ward Howe, 
Mr, and Mrs. James T. Fields, Leonard Woods, Wil- 
liam M. Evarts, Senator and Judge Hoar, Hillard, 
Henry James, Senior, Motley, and not a few others. 

Mr. Dana not only lived in such a garden, with its 
inevitable influence on any one with literary instincts 
and aspirations, but he assiduously cultivated his 
own plot in that garden. When going to boarding- 
school, not being quite nine years of age, his father 
gave him the parting words, "Put your bones to it, 
my boy." This instruction he seems to have carried 
out in his school-work, though he says he indulged in 
no little day-dreaming during his one year in this 
particular boarding-school, chiefly because he had 
been so well prepared, and there was so little work to 
occupy the school-hours. 

He seems to have preferred those teachers who 
enforced "system and discipline" as more likely to 
"insure regular and vigorous study," and as on the 
whole more valuable "though not so popular with us 
nor perhaps so elevated in the habits of thought as 
Mr. Ralph Waldo Emerson," who was his teacher at 
the Cambridge school for a short time. While this 
shows Dana's estimation, even when a boy, of hard 
work, none the less did Emerson's "elevated habits 



INTRODUCTORY SKETCH 11 

of thought" undoubtedly have then- influence for 
good. 

While a school-boy of scarcely ten, occurred the 
fiftieth anniversary of Lexington and Concord and 
Bunker Hill, with the great speeches of Webster and 
Everett, with Lafayette's triumphal progress through 
the country, and the popular enthusiasm aroused. 
These things, he wrote, "made us all ardent patriots," 
and led him to read Thacher's Journal, Heath's 
"Memoirs of the Revolution," and "short lives of 
Washington and Lafayette." 

I must not close his boyhood work without noting 
what he says of the day-school which he and so many 
other dwellers in the literary garden attended. 

"There is one feature of the school at Cambridge 
which I always recur to with great pleasure. This 
is the uncommon gentlemanly spirit that prevailed 
among the scholars. We were all, with never more 
than one or two exceptions, the sons of educated men, 
lived at our own homes, and being so much connected 
with the University, saw a good deal of literary society 
and became familiar with much higher style of conver- 
sation and range of topics than boys usually are. The 
profanity, vulgar and indecent language so common 
among school-boys was almost unknown among us 
... a high sense of honor and a certain pride of per- 
sonal character was the esprit de corps. . . . Topics of 
conversation also among the boys were much more 
select and improving than I ever knew at any other 
school, and even more so than with most college 
students." 

Who can tell how much this ''esprit de corps" and 
these "topics of conversation" in the Cambridge 
school, for which the boys themselves were respon- 



12 RICHARD HENRY DANA, JR. 

sible, had to do with the wonderful growths that 
followed in the literary garden! If these are some of 
the causes, then let us exclaim, in a more primitive 
sense perhaps than the words were used by Juvenal: 
"Maxima debetur pueris reverentia." Perhaps it was 
his experience as instructor of these very youths that 
suggested to Emerson his oft-quoted remark, "Send 
your son to school and the boys will teach him." 

Mr. Dana was brought up, also, to be manly and 
self-reliant as a boy. His father, though naturally 
of a foreboding cast of mind, concealed his fears from 
his son and encouraged him to run all the risks, or- 
dinary and extraordinary, of boys' sports. Let me 
give an illustration. Young Dana and his boy-friends 
were in the habit of swimming in the Charles River, 
with its treacherous bottom and sweeping tides. One 
of his companions was there drowned. A few days 
after, he asked his father if he should go in swimming 
as usual. His father said, "Why not.^^" Off went 
Richard; but his father, in his anxiety, walked the 
floor of his study back and forth until his son returned, 
though of this his son never heard a word until long 
after he had grown to manhood. 

In college Dana immediately took high rank in his 
class. He returned from his two years before the mast 
*'hungry for literature," and from then on, he not 
only stood first, but had "the highest marks that were 
given out in every branch of study." He took the 
Bowdoin prize for English prose composition and first 
Boylston prize in elocution. 

Of his early college days, before going to sea, he 
says in his journal, written ten years later: "Having 
very strong eyes, I usually learned my morning lesson 
by candle-light before breakfast, and gave my even- 



INTRODUCTORY SKETCH 13 

ings to general reading, frequently sitting up until 
past midnight. Croker's edition of Boswell's 'Life of 
Johnson' and Carlyle's 'Life of Schiller' I remember 
as among the books I dispatched during the winter." 

In the vacation of his sophomore year, he read, 
among other books, Johnson's "Lives of the Poets." 
In the Law School, as he put it, "We were placed in 
a library under learned, honorable, and gentlemanly 
instructors [the chief of whom were Judge Story and 
Professor Greenleaf], and invited to pursue the study 
of jurisprudence as a system of philosophy," — and 
in this pursuit he took a high stand. There was no 
rank list in the Law School of those days, but he is 
said to have held his own among such stimulating 
opponents as his classmates, George Bemis, William 
Davis of Plymouth, Judge Hoar, and William M. 
Evarts. 

The following anecdote, taken from Mr. Dana's 
journal, shows Judge Story's estimate of how pro- 
fitable the study in the Law School had been to his 
pupil : — 

"In the autumn of 1839, I made an argument be- 
fore Judge Story upon the subject of the effect of 
a judgment between creditors and accommodation 
indorsers, which he requested me to write out for him 
in full that he might take it to Washington with him 
in the winter and show it to the judges of the Supreme 
Court as a specimen of what could be done upon a two 
years' education at a law school. I did so and upon 
his return he brought me very gratifying compliments 
from the judges and especially from Judge McLean, 
in whose circuit the question had arisen, but had not 
been argued." 

While in the Law School, in furtherance of his edu- 



14 RICHARD HENRY DANA, JR. 

cation, and to aid him financially as well, he taught 
English and elocution at Harvard as assistant to 
Professor Edward Tyrrel Channing. Under the influ- 
ence of his father and Professor Channing, and also, 
doubtless, from choice, his style was simple, and he 
preferred the short, Anglo-Saxon words. A commit- 
tee of the American oculists, recently preparing tests 
for eyes, sought out passages of shortest words and 
clearest style, and finding these in "Two Years Before 
the Mast," wrote for permission to use extracts. This 
was granted, and now, at the oculists' and opticians' 
throughout the United States, one finds, put before 
him in neat frames, in type of varied size, these ex- 
tracts from Dana's sea narrative.^ During the last 
year in college and two and a half years in the Law 
School, he made a point of spending "one evening 
a week" with Washington Allston. So much for his 
early preparation of his own plot in this remarkable 
garden. 

But Dana did not stop with the spring digging, 
fertilizing and seeding, as so many do, and then let 
matters alone; but all through his career he kept up 
his literary gardening. In the Life Mr. Adams gives 
a picture of the killing work Mr. Dana did, and the 
want of variety, entertainment, and diversion, that is 
as pathetic as it is true. Mr. Adams ends a sketch of 
a day as follows : — 

"By and by, when the dreary evening meal — in 
no way dreary to him — was disposed of, and the even- 
ing paper read and the talk with the children over, 

^ Since the publication of the Biography, Two Years Before the Mast 
has been included in a collection of the World's Greatest Books (1901), 
and also in the Harvard Classics, edited by ex-President Charles W. Eliot 
(1910). 



INTRODUCTORY SKETCH 15 

Dana would disappear into his library, the green bag 
would be emptied of its papers, and the lawyer would 
be immersed in a study of his case until bedtime." 

As to the detail of the evening paper, my father 
told me he never read an evening paper except dur- 
ing some critical periods of the Civil War, urging 
on me that one paper a day was enough in the economy 
of time. There is, however, an omission of real im- 
portance from this picture of the evening habits, 
and that is the hour, or hour and a half, before bed, 
when Mr. Dana put his law papers back into the 
green bag, changed from lawyer to student, and took 
up general reading. He explained to me how much 
could be accomplished by this one or two hours in 
twenty -four, if persisted in. In this way, he told me, 
taking notes and reviewing the previous night's 
portion, he read the whole of Grote's Greece, twelve 
volumes, Mitford's Greece, Gibbon's Rome, Hal- 
lam's Middle Ages and Constitutional History, 
Hume's England (unabridged), and, as he said, 
"to get the Catholic view-point," Lingard's History 
of England, then Macaulay's England, Burke's 
speeches and essays, much of which he read and re- 
read, learning passages by heart, and Campbell's 
"Lives of the Chief Justices." He read many of 
Erskine's and Webster's speeches and also some Euro- 
pean history from the Middle Ages on, and I do not 
remember what else. He told me he usually read a 
little Latin, and he took up his French again at one 
period in these evening hours, both reading and 
writing, supplementing this at the time with French 
conversation at the end of an afternoon or two a 
week. In 1852 he writes in his journal of the plan of 
cultivation as he was then carrying it on, as follows: 



16 RICHARD HENRY DANA, JR. 

" My rule is to write a little Latin every Tuesday, 
Thursday, and Saturday evening, and to read a little 
French every other evening, and then to read in my 
course of History or Law." 

On Sundays, after the midday meal of cold roast 
beef, which, under the ameliorating rules of Sunday 
observance, later became hot roast beef, he retired 
into his library for some turns of the clock's long 
hand, before the children's hour with its questioning 
and home-teaching; and there, excepting for the 
afternoon church in the earlier days, and a walk in 
the fresh air, besides his study of the Bible and com- 
mentaries on it, the New Testament in Greek, and 
purely religious works, he re-read his Milton's poems, 
also "finished Milton's prose," and read, for ex- 
ample, Coleridge's philosophy and poetry, Words- 
worth, Southey, and other "Lake" poets, Spenser's 
"Faerie Queene," Bishop Berkeley, Adam Smith, 
Jeremy Taylor, Confessions of St. Augustine, "Prac- 
tical View" and speeches of William Wilberforce, 
and speeches of his son, the Bishop, speeches of 
Gladstone, the Bishop of Oxford and other great par- 
liamentarians, Life of Henry Martyn, "Double Wit- 
ness for the Church," Newman, Pusey, Bacon's "No- 
vum Organum," Tennyson, learning some whole 
poems by heart and passages of others, which he some- 
times repeated to us children, to our great delight, 
at home or in the walks in the woods or on the smooth 
sand beach at "beloved" Manchester. 

It is true, as told by Mr. Adams in the Life, that 
in 1856 he had not read, nor did he at the time care 
to read, "Henry Esmond." He had read "Vanity 
Fair," and from that judged Thackeray to be a cynic. 
He had seen a bad effect of "Vanity Fair" on some 



INTRODUCTORY SKETCH 17 

young people. He advised me not to read it while in 
school. Later he read "Pendennis," and was so 
fascinated that he read it right over again to his wife; 
and later "The Newcomes" and the "Paris Sketch- 
Book"; and ultimately he changed his view of 
Thackeray. 

In going over his journals and a few of his letters, 
I find he speaks of reading, besides some of the above, 
Romilly's Memoirs,^ Ruskin, "Guesses at Truth," 
by Augustus and Charles Hare, "School-Days at 
Rugby," "The Heir of Redclyffe," Cowper's Odys- 
sey, "Friends in Council," "Broad Stone of Hon- 
our," Adams's "Social Compact," "Don Quixote," 
much of Dickens, Bulwer, George Eliot, Cooper, 
Byron, Gray, Pope, Burns, Cowper, Scott, both 
poems and prose, Keble, the "Judicious" Hooker, 
Hazlitt's "Table Talk," and the "Spectator," and at 
times he writes of re-reading Shakespeare on his short 
journeys. 

This is a meagre list, to be sure, but it is not fair 
to limit the catalogue of his mental library by the 
journal entries. Several times he speaks of "read- 
ing," without naming book or author. "My mode 
of life" one summer in town, for example, he says, 
has been "as follows: Rise at six, take a swim in the 
back bay at Braman's, and read and write till half- 
past eight." The journal has lapses, first of weeks, 
then of months, and later of half years, and ceases 
altogether in 1859. We know, for example, he read, 
re-read, and took the greatest delight in Smith's 
"Rejected Addresses," but no mention of them ap- 
pears of record. As another illustration of the im- 
perfection of this kind of cataloguing, he nowhere 
^ Sir Samuel Romilly, three volumes. 



18 RICHx\RD HENRY DANA, JR. 

speaks of reading Bolingbroke or Warburton, but 
evidently must have, from the following, taken from 
the journal account of his first visit to Washington 
in 1844: — 

"The (U. S.) Supreme Court was still in and I 
heard parts of arguments from Choate, Daniel Lord, 
and Crittenden and a little ex tempore classical en- 
counter between Judge Story and Choate, relating 
to a quotation from Pope, as interpreted by Warbur- 
ton against the imputation of Bolingbroke. Choate 
said, 'The infidel sentiment the poet was made to 
utter.' Judge Story broke in with an expression in 
defense of Pope from the charge of infidelity, which 
Choate explained by referring to his own phrase, 
^was made to utter,' meaning what Bolingbroke had 
said, and they both simultaneously referred to War- 
burton's explanation. This little episode was quite 
characteristic and agreeable. I doubt if Kentucky 
Crittenden had ever heard of Warburton, though he 
might of Pope and Bolingbroke." 

Mr. Dana's delight in literature is constantly man- 
ifested in his journal. When coming back from short 
outings and settling down to work in his ofiice, he 
sometimes wonders how it might be if he had a com- 
petence and leisure, though concluding that perhaps 
he is, after all, happier in hard work. These Elysian 
dreams, it is worth noting, include "devoting" him- 
self to "literature." In the autumn of 1853, he says: 
"I am again established in my own house. . . . 
If I can have a winter of successful work in my office 
and in my library, with my delightful course of study 
before me, with all my troubles, shall I not be per- 
fectly happy?" 

Showing how such things interested him, we may 



INTRODUCTORY SKETCH 19 

note that, in a very busy period, when he made but 
three entries in his journal in three months, one of 
them is as follows, November 27, 1849: — 

"Sunday Ev. Spent an hour at Uncle Edmund's. 
Talking of Boswell's Johnson, he said that when he 
was in England, visiting at his uncle's (Rev. Edmund 
Dana of Wroxeter, Salop), he met a gentleman by 
the name of Lockhart Johnstone, a near relative of 
Mrs. Dana's, who was a daughter of Lord Kinnaird 
and niece of Sir W. Johnstone. Mr. Johnstone had 
been intimate with Dr. Parr,^ and some time in his 
house. He said Dr. P. told him that Boswell used to 
make a minute of Dr. J.'s conversation each night 
when he got home, and take it to Johnson the next 
morning, read it to him and have it corrected. Uncle 
E. says he asked Mr. Johnstone if this could be relied 
upon, and Mr. J. told him it might be, for he had 
it from Parr himself, who was friendly to Johnson." 

Some of his daughters, after "finishing" their edu- 
cation, as was the too common phrase, joined a reading 
club of friends, taking up serious history, philosophy, 
and literature. They were surprised to find that their 
busy lawyer father not only knew a great deal of 
what they were studying, but was able and willing 
to suggest and explain. While it is clear that his ex- 
acting profession curtailed his general reading, yet, 
with such tastes and enthusiasm, being a rapid reader, 
hearing stimulating literary talk, and with books 
at hand, he managed to be, or perhaps I had better 
say, could hardly be kept from being, a remarkably 
well-read man among well-educated persons. 

In philosophy, he studied metaphysics and moral 
and intellectual philosophy in college, and planned at 
^ Samuel Parr, LL.D., 1747-1825. 



20 RICHARD HENRY DANA, JR. 

one time to pursue these studies in a post-graduate 
course with Professor James Marsh of Burlington, so 
great was his interest in them. Besides reading those 
philosophical works I have previously mentioned, he 
in later days discussed Spenser, Comte, Darwin, Tyn- 
dall, Huxley, Emerson, ^ and some of the modern 
German philosophers, with his father and brother 
Edmund, who, with their leisure, had time to read 
in full what he, with his quick mind, took in only in 
talks or from essays, short passages and criticisms. 
Comte, for example, was one of the familiar names 
in the Chestnut Street talks, with his ideas on hu- 
manity as the "deus," and "the impluse to serve 
humanity" as "religion." Mr. Dana's friend and 
former partner, Mr. Francis E. Parker,! have heard 
discoursing on modern philosophy with my father. 
Any philosophy, however, which seemed to militate 
against Christianity was read with a critical eye, not 
because he closed his mind to truth, but because he 
queried whether every new philosophy, however plaus- 
ible or convincing it might seem, was in reality the 
truth. As he said to me, in substance, one generation or 
decade has been carried away with a system that the 
next modifies or refutes altogether. Even in nature, 
what the scientist recently ridiculed as impossible 
is the commonplace of to-day. He quoted Professor 
Cooke as saying he had had to change his fundamental 
ideas of chemistry some twenty times. He believed 
there were mysteries behind the phenomena of na- 
ture not dreamed of by the physicists. If, for exam- 
ple, matter is but "centres of force," then, said he, 
matter is non-material, as we think of the material, 

^ He writes in his journal of going out of town to hear Emerson 
lecture. 




^^^z ^- 



r, av :b:'.9 



INTRODUCTORY SKETCH 21 

and comes pretty near being the creation of an om- 
nipotent spiritual will. This view of "centres of 
force" is coming prominently forward again, and we 
are told the marvelous power of these forces is some- 
thing almost beyond belief. We do not know what a 
law of nature is. The usual definition, "an observed 
sequence of phenomena," explains nothing. Some 
German philosophers, he remarked, doubted the uni- 
versality of the laws of time and space. Our reasoning 
on infinity brings us to contradictions. He believed 
Coleridge's idea, that human reason is limited perhaps 
wholly to the scope of its experience. If, even in the 
region of experience, Mr. Dana added, it cannot ex- 
plain such familiar things as matter, or the laws of 
nature, oreven what electricity is, or chemical affinity, 
how can the human mind be trusted, then, in its theories 
of the great cause of all, of the supernatural and of 
eternal life? The one thing, he said, that has lasted 
through all this change, is religion. Men have changed 
their philosophical views of matters religious, but 
religion itself has outlasted all else; therefore let us 
not easily throw it aside at the bidding of the last 
thinker. Nor would natural religion be enough. So- 
cial and economic conditions may lead to certain 
utilitarian morals; but the idea that "honesty is the 
best policy," for example, probably never made any 
man really honest in matters not likely to be found 
out.^ He believed it was only the love of a personal 
God that would influence men to real goodness, and 
that the highest love of God was aroused in human 

^ There is found, in one of Mr. Dana's public addresses, the following: 
"Aristotle, the greatest of all reasoners, says the attempt to apply geo- 
metrical rules to moral reasoning leads to the most dangerous of all soph- 
istries." 



m RICHARD HENRY DANA, JR. 

beings through the manifestation of God in the Son 
of Man. 

Berkeley's philosophy, so like that of the post- 
Kantian idealists, was, he told me, a comfort to him. 
He named the street in Cambridge, where he built 
his house, after that Lord Bishop philosopher. Had 
he lived to read "Robert Elsmere," what would have 
been his comment on the words of Henry Gray, 
"God is not wisely trusted when declared unintel- 
ligible." "Such honor rooted in dishonor stands; 
such faith unfaithful makes us falsely true." "God 
is forever reason; and His communication, His reve- 
lation is reason".'^ I believe it would have been some- 
thing like this, judging from his many talks on kin- 
dred subjects. "If by * unintelligible ' is meant that 
human reason, limited by concrete experience of 
finite things, is expected to reject what it cannot 
comprehend of the infinite spirit, then I should ask 
how, a priori, could such intelligence be expected, 
unless we limit the immortal mortalwise, the infinite 
finitely, and the great first creator creaturewise ? 
If, however, it is conceded that our faith may tran- 
scend experience, may apprehend though not com- 
prehend the infinite, but that it should not contradict 
reason, then these words of Gray's I adopt." 

These statements may not meet acceptance at the 
hands of modern philosophers; but what statement 
is accepted.^ It is somewhat gratifying to those in 
the outer courts to hear that there is no complete 
agreement among those in the inner temple. At a 
recent after-dinner address, the late Professor James 
said of the Philosophical Department at Harvard, 
"We are united because each thinks the others are 
cultivating the soil from which truth may spring. 



INTRODUCTORY SKETCH 23 

but not because we all agree. We do not disagree, 
chiefly because none of us understand what the others 
are saying." 

In private talks with me in 1875 to 1878, he ex- 
pressed, as possible, views of religion which at that 
time would have been considered as "advanced,'* 
but such as are now generally held, or at least al- 
lowable, by thinkers of his church in America and 
England. To sum up, Mr. Dana, in his religious 
opinion, was conservative, not easily carried away 
by new views, but open-minded, fair, and, above all, 
not dogmatic. 

In political economy, I remember my astonishment, 
while an undergraduate, as he told me, during a walk 
over the West Boston Bridge, that, though a Repub- 
lican, he believed that the best authorities were 
against a high protective tariff. He said the party 
had become committed to protection as a method of 
raising funds during the war, and to offset the high 
internal revenue taxes on certain home products. 
Later, as I studied political economy more fully, I 
came to appreciate his position. 

While in college I took several courses in philoso- 
phy and did some collateral reading in this branch. 
I was surprised, in talking with my father, to find 
how much he knew of what I thought was beyond 
his reading. Later in life, he became more tolerant 
of some of the new philosophical ideas as they became 
better understood, and accepted them. As to accept- 
ing them, Mr. Dana did not, like the late Philip 
Henry Goss, F. R. S., in his "Omphalos," believe 
that the earth, with its fossils and glacial marks, 
was created just as it is by one catastrophic act in a 
day of twenty-four hours. He admitted long peri- 



24 RICHARD HENRY DANA, JR. 

ods of development and evolution, but he believed 
it was evolution by successive creations, not by nat- 
ural selection alone. Indeed, as it now appears, nat- 
ural selection is not the final word, nor the whole 
explanation. Whatever the ultimate conclusion, 
there are at least sudden developments, now called 
" mutations," which are preserved, modified or lost 
by natural selection, but which are not caused by it. 

As to Mr. Dana's attitude toward Darwinism, we 
must remember that Agassiz had not accepted that 
when he died in 1874, and Mr. Dana survived Agas- 
siz less than eight years. In a letter to one of his 
married daughters, written from Rome, eight months 
before his own death, speaking of the poetry and 
romance inseparably connected with that city, he 
says, with a touch of humor: "Thank God, imagi- 
nation and sentiment are still the strongest forces 
we have to deal with, notwithstanding the attempt 
of scientists to debase the nature of man." 

In biography Mr. Dana was much interested, and, 
of course, in all American history. He kept scrap- 
books and bound volumes of pamphlets, in which 
all the best current speeches, arguments, party plat- 
forms, and the like were preserved, which enabled 
him to make immediate reference to them in prepar- 
ing his public speeches and addresses. He belonged 
to a "Book Club" in Cambridge, was an original 
member and constant attendant of the celebrated 
Saturday Club ^ even before it was organized and 
named, and was sometimes present at the Longfellow 
Dante readings, out of which grew the famous Dante 
Society. 

As a part of his literary work after beginning his 

' See Adams's Life, vol. ii, pp. 162-170 and 359-360. 



INTRODUCTORY SKETCH 25 

law practice, he wrote an account of Professor Ed- 
ward Tyrrel Channing as introduction for the pub- 
lished "Lectures," edited Allston's "Sylphs of the 
Seasons" and "Poems" and "Lectures on Art," and 
wrote biographical sketches of Major Vinton, of 
Rev. Leonard Woods, of Judge Wilde, part of Ran- 
toul's, and others. Mr. Dana's Lyceum lecture, 
"Sources of Influence," which he delivered so often, 
is not written out in full, but in part as mere head- 
notes. In that he took the stand that what we call 
temperament or character had more to do with a 
man's influence than his learning. This he illustrated 
from history, literature, biography, and experience 
in life.^ He also gave, in various cities from Balti- 
more to Portland, what he calls his "Sea Lecture," 
one on "Knowledge is Power," one called "American 
Loyalty," one on Edmund Burke, and another on 
"English Contrasts," all of which took him outside 
of his professional work. None of these latter, how- 
ever, are in complete form for publication." The 
"English Contrasts" is of little novelty to-day, as so 
many people visit England now. If published it 
would be of interest chiefly as showing the contrasts 
between the America of 1856 and of 1910. In 1856 
our railway "depots" were mostly of wood with 
wooden platforms, a general air of dirt and uncleanli- 
ness about, with no shrubbery or ornamental grass 
and flowers. The rails were light, the bridges mostly 
of wood, grade-crossings were the rule, the cars were 
noisy and dirty, and the cinders almost unendurable. 

^ See Adams's Life, vol. i, pp. 42-45 and 114. 

^ See Bibliography at end of this volume for various published 
speeches, addresses, letters, political " resolutions," and lec- 
tures. 



26 RICHARD HENRY DANA, JR. 

There were almost no well-kept private lawns, even 
in the suburbs, hardly any good architecture, and 
almost no art. 

As a part of the preparation for his profession, 
he studied double-entry bookkeeping, and for many 
years while practicing law, he kept his cash-book, 
journal, ledger, and day-book, making all the entries 
and postings himself, footing the columns and making 
trial balances. Later he simplified his system, keep- 
ing only check-book, office-ledger, and docket. Even 
to the end, most of them are in his own handwriting. 
The early experience in bookkeeping he found most 
helpful in tracing out the transactions and cross- 
examining the expert witnesses in some of the bank- 
ing and business lawsuits. The amount of labor this 
bookkeeping entailed, while he was in court all day, 
was enormous; but labor he did not shirk. His were 
no eight-hour days. 

I can best sum up this cultivation of his own 
garden-plot by quoting the entry in his journal, made 
on first taking possession of his study in his new 
house in Berkeley Street, Cambridge, March 16, 
1852: "May my private room be consecrated to 
study and thought, for my own good and the good 
of my fellow-men." 

I must say a word as to some of the statements 
in Adams's Life, especially in the chapter of Remi- 
niscences, as it appeared in the first edition. In a 
later edition Mr. Adams made important corrections; 
but it is the first edition that most of Mr. Dana's 
friends read and that is in most of the libraries. Before 
proceeding further, however, I want to repeat how 
deeply Mr. Dana's family are indebted to Mr. Adams 
for what seems to them the fine way in which he 



INTRODUCTORY SKETCH 27 

treated his subject, and how small a part the criticisms 
here made bear to the admirable whole. 

Mr. Adams's idea that Mr. Dana was "not an 
especial admirer of Milton"^ came from a letter to 
his wife, in which he made fun of her great knowledge 
of that poet. This was really intended as a humorous, 
indirect compliment, as she could recite pages on 
pages of Milton's poems, while he knew by heart 
only short passages or quotations. That he admired 
Milton as a poet and writer (though not as a theo- 
logian) is evidenced by the fact that he read the 
"Paradise Lost" tw^ice, and the "Paradise Regained" 
and "Samson Agonistes" once with me in our too 
brief Sunday afternoon hours while I was in college 
and the Law School, and the "Hymn of the Nativity" 
to us all nearly every Christmas Eve; and also by the 
marginal marks in the three-volume edition of Mil- 
ton's Poems he bought while he was in the Law 
School. He had to rebind it in the seventies. It had 
nearly come apart from frequent use. 

As to his "not caring for Tennyson," Mr. Adams 
inferred that, because, in 1856, returning from his 
delightful trip in England, he said he had seen alP 
those he cared to see, and yet he did not see Tenny- 
son.^ Such words should not be taken too literally. 
The remark was an ebullition of enthusiasm, not a 
mathematical census of his admirations, based on 
a count of noses. Perhaps it may be true that he did 
not particularly care to see Tennyson personally. 
He was aware of Tennyson's dislike of strangers, and 
especially of Americans, and I remember my father 
said to me, and Mr. Lowell confirmed it, when I was 

^ Life, vol. ii, p. 151. ^ His journal says "almost all." 

^ Life, vol. ii, p. 151. 



28 RICHARD HENRY DANA, JR. 

about to visit England, "You had better know Ten- 
nyson from his works." A distinguished American 
author, a friend of my father's, told me of Tenny- 
son's morbid state of mind on the subject of strangers. 
While walking in the garden at Farringford, Isle of 
Wight, Tennyson pulled him aside and said ear- 
nestly, "People are looking at me through the hedge," 
when there was no one to be seen there; and, while 
on the housetop, looking at the view, Tennyson 
exclaimed, "There they are, rushing to look at me!" 
when, in reality, some farm-hands were merely has- 
tening to shelter from a threatening shower. This 
was said, too, in the way of complaint, not in a vein 
of humor. 

As to not seeking out Darwin in 1856, very possibly 
Mr. Dana would not have had sufficient sympathy 
with Darwin's views to look him up, even had he been 
visiting England later. But, though somewhat known 
among scientists, Darwin had not made his great 
popular reputation in 1856. His " Origin of Species 
by Means of Natural Selection" was published in 
1859, and his "Descent of Man" not until 1871. 

In general, therefore, it may be said that it was 
through such natural advantages, by means of such 
preparation in school and college, and such industry 
all through life, that Mr. Dana was equipped to 
prepare such an oration as that on Edward Everett 
with only three weeks' notice; and that he was 
enabled, for example, in the celebrated case of Dalton 
V. Dalton, and in many another unpublished legal 
contest, to cap the wealth of illustration and quota- 
tion in Rufus Choate's arguments, sometimes turn- 
ing them against his renowned opponent, or at a 
moment's notice to give such an address as that on 



INTRODUCTORY SKETCH 29 

Mr. Choate's death at the meeting of the Suffolk 
Bar in 1859. 

As to Mr. Dana's argument in the Dalton case, I 
have not inchided it among these speeches. It was, 
according to the custom of those times, long. Then 
lawyers reiterated the same idea over and over, from 
every point of view and in varied language, and ham- 
mered in again and again certain telling phrases, lest 
one single juror should fail to understand. That was 
a day when people were used to long prayers, long 
sermons, and long lectures. Mr. Dana's argument 
in this case is about 66,000 words, and would make 
up half a volume in print. It took twelve hours to 
deliver; but he had to meet, single-handed, the com- 
bined onslaughts of the two best lawyers of the state, 
Rufus Choate and Henry F. Durant, and an ex- 
tremely hostile judge, and had to combat a popular 
prejudice raised against his client in the press. He 
had to counteract Choate's ten hours of eloquence. 
It was a case of divorce against a wife on the scrip- 
tural ground, and Mr. Dana was for the husband. 
Mr. Dana's argument^ shows a most delicate han- 
dling of a cause scmidaleuse. He succeeded in making a 
deep impression on the public in favor of his client, 
and won over eleven out of twelve jurors, though 
he had the burden of proof. The twelfth juror after- 
wards explained that he was influenced by just one 
argument of Choate's, and that was : " If you acquit, if 
you show that a Suffolk jury assures him his surmises 
are groundless, will it not be he rather than she that 
will have occasion to bless you for your judgment.^" 

A curious coincidence, the story of which should 

Reprinted in pamphlet form, and to be found in many of the older 
libraries. 



30 RICHARD HENRY DANA, JR. 

not be lost, arose about this case and the twelfth 
juror's reason of action. Some years after Mr. 
Choate's death, Mr. Dana was relating to a younger 
lawyer in his office, Mr. E. N. Hill, the chief incidents 
of this case. Just then, Mr. Durant, the only other 
living person connected with its conduct, unexpect- 
edly called to see Mr. Dana's partner. Mr. Dana then 
closed the door of his private room so as to talk more 
freely. He had just reached the end of the narrative, 
and explained the action of the twelfth juror, when 
a knock came on his door. He went to it, and there 
was a man with the dress, voice, and manners of a 
Westerner. Pie said, "Mr. Dana, you do not recog- 
nize me; I was one of your clients." To this Mr. 
Dana replied that he had many clients, his memory 
for faces was bad on account of near-sightedness, and 
perhaps, too, his client had changed in appearance. 
Then, to his astonishment, came out the name, 
"Dalton." Dalton explained that, after his first dis- 
appointment, he had become more and more im- 
pressed with the same point in Mr. Choate's argu- 
ment that had influenced the twelfth juror; that, 
failing to get his divorce, he decided to make it up 
with his wife; that they went to a far western terri- 
tory where their names were unknown, and there 
started life anew. They had had several children and 
lived happily, and he was glad he did not succeed in 
his lawsuit.^ Does any instance of supposed telepathy, 
or psychic influence, show a more remarkable coin- 
cidence than Mr. Dana's narrative and the accidental 
coming close together of the three chief actors then 
living.f^ 

Mr. E. N. HiE confirms this story just as I recall hearing it from my 
father, so this strange coincidence depends not on my memory alone. 



INTRODUCTORY SKETCH 31 

There was another cause celebre et scandaleuse in 
which Mr. Dana took part. In this he defended a 
then well-known clergyman, "a brilliant orator, who 
drew like a magnet," from the criminal charge of 
adultery. This case, too, Mr. Dana handled with the 
utmost delicacy. The few points on which he had to 
speak plainly he condensed into a few short sentences. 
The whole argument was only one fifth of the length 
of his argument in Dalton v. Dalton. He drove 
through the government's case like a troop of cavalry 
on full gallop, and carried the jury and audience 
along with him. Notwithstanding this unanimous 
acquittal by the jury, this clergyman's subsequent 
reputation was such as to cause him to leave Boston 
for the middle west. "From there he took another 
flight to" the Pacific coast, where later he was elected 
Mayor of San Francisco as the candidate of the Sand- 
Lots party in the days of Denis Kearney, and there 
he became involved in exciting episodes not necessary 
to follow out here. Into the defense of this man Mr. 
Dana had put his best efforts, in the full belief of the 
innocence of his client, and Mrs. Dana had aided 
him with some suggestions. To his infinite disgust, 
after the trial was over and after his client was assured 
there was no appeal, and that the constitution of 
Massachusetts protected him from retrial, no matter 
what new evidence might turn up, he boasted, or as 
Mr. Dana graphically stated it, "kicked up his heels" 
and said, "I did it, though!" 

This may lead us to answer the question, so often 
in the minds, if not on the tongues, of laymen, how 
a man so high-minded, nay, "lofty-minded" as Mr. 
Lowell says of him, can practice law when he must 
have to defend men he knows to be guilty. On this 



32 RICHARD HENRY DANA, JR. 

subject my father often spoke somewhat as follows: 
Every one charged with crime has a constitutional 
right to have the case proved against him beyond 
the reasonable doubt of a jury. In taking such a 
position for a client, however, the lawyer must not 
mislead the court. His duty is to stand by and see 
that no inadmissible evidence is produced by the pro- 
secution, and that the witnesses' statements agree and 
will bear cross-examination; but to get up a false alibi, 
for example, is not only not required of a lawyer, but is 
against his oath of office ^ and a cause for disbarment. 
Such cases of putting the government to its proofs 
as a part of the constitutional right of an accused, 
where there is no other defense, are uncommon, and 
in a long and varied practice, Mr. Dana never had 
to do this when he knew that his client was guilty. 

The nearest to such an attitude that he ever took 
was his defense of the fugitive slave, Anthony Burns. 
Mr. Dana believed the Fugitive Slave Law, though 
pronounced constitutional, to be immoral and unjust 
in many of its provisions, and that a man, free under 
the laws of Massachusetts, should have the right to 
compel the claimants to show their proofs and estab- 
lish them by the strictest rules of law and evidence. 
Mr. Dana showed that the testimony on identity was 
contradictory, and argued that they had not made 
out a case, though he doubtless felt morally sure that 

^ The oath of office in Massachusetts is as follows: You [Richard H. 
Dana], solemnly swear that you will do no falsehood nor consent to the 
doing of any in court; you will not wittingly or willingly promote or sue 
any false, groundless or unlawful suit, nor give aid or consent to the 
same; you will delay no man for lucre or malice; but you will conduct 
yourself in the office of an attorney within the courts according to the 
best of your knowledge and discretion, and with all good fidelity as well 
to the courts as your clients. So help you God. 



INTRODUCTORY SKETCH 33 

the Anthony Burns he was defending was a runaway 
slave of that name, and belonged to some one. Then 
there was also doubt whether Sutton, the claimant 
in that case, had not really lost his claim by having 
leased Burns to another. 

Mr. Dana, it is true, had cases when he knew his 
client had done an act, as in the Peter York case; 
but his part was only to try and prove by evidence 
and argument that the act was manslaughter and 
not murder, or in other cases that it was trespass 
instead of larceny, or that the defendant was insane, 
or that criminal intent was lacking, or to show miti- 
gating circumstances that would reduce the penalty. 
To illustrate, take the following from his journal 
under date of December 14, 1842: — 

''Defended an Irishman named David Keefe for 
assaulting his wife with intent to kill. The evidence 
was so strong against him that I only argued the 
possibility of its not being done with a murderous 
intent. He was convicted. I satisfied the court that 
he was a temperate, industrious, and faithful man, and 
he was sentenced to one year in State Prison." 

But the query sometimes takes another form. If 
the lawyer does not take a case he knoivs to be wrong, 
does he not take cases in which he does not believe? 
First, the personal contact with the client, who per- 
sists in his innocence, or the justice of his cause, 
arouses a sympathy and belief that the distant public 
may not share; indeed, the real danger to the cause 
of justice comes, in actual practice, from too much 
sympathy for and belief in one's client, not from too 
little; but second, and most important, the lawyer 
has no right to disbelieve a client. He should, it is 
true, examine his client's statements, for the double 



34 RICHARD HENRY DANA, JR. 

purpose of better understanding the case and testing 
its truth; but it is when the circumstances are most 
incriminating to an innocent man, when the press 
and the pubhc are most against him, that he most 
needs the services of able counsel. A cold-blooded 
murderer may add to his dark deed the despicable 
plan of committing it in such a way as to throw sus- 
picion upon another, to divert attention from him- 
self. What would happen then if a lawyer should say 
to the innocent man under such suspicion, "Oh, I 
have read the papers and believe you are very likely 
guilty, and therefore I will have nothing to do w^ith 
you".'^ If one reputable lawyer may do this, then 
another may, and the disheartened man will be de- 
prived of all reputable support in the hour of his 
great stress. No, the lawyer is an officer of the court. 
Our system of jurisprudence is to have one such 
officer support one side and another the other, and 
then to have the jury, with the aid of the judge, make 
the final decision. 

There is actual danger to justice in disbelieving 
one's client too readily. There is a celebrated Ver- 
mont case which my father told somewhat as follows : 
An old man was missing. He was last seen by his 
neighbors going into the forest, in the direction where 
two young men were cutting wood. These young 
men owed him money which they were unable to 
repay. He held their notes for this money, and these 
notes were also missing. Blood was found on the 
clothes of the young men. Their defense was that the 
blood was the blood of their dog, killed by the slip- 
ping of an ax, on the very day the old man had dis- 
appeared. No one believed their story, not even their 
own lawyer. He advised them to plead guilty, urging 



INTRODUCTORY SKETCH 35 

that perhaps a frank confession, saving the expense 
to the country of a trial, might give him ground to 
secure from the governor a commutation of the death 
sentence to imprisonment for life. But even this 
failed. The day fixed for the hanging was close at 
hand when, to their joy, the old man turned up alive. 
He had wandered way out to Ohio in a dazed condi- 
tion of mind; and on his person were found the miss- 
ing notes. Then, for the first time, the public, the 
governor and their lawyer believed the whole story 
of the dog and the slipping ax, and then the youths 
were set free. 

My father further illustrated the same idea by the 
story of how Charles G. Loring gave up a case in 
court, because he found his chief witnesses answered 
falsely on one point. He was on the side of an insur- 
ance company resisting payment for loss of a vessel 
which Mr. Loring contended had been scuttled. It 
turned out afterwards that his case was right, that 
the main story was true. The vessel when raised was 
found with the holes bored in her bottom ; but, sailor- 
like, the chief witness had tried to support the truth 
by some "collateral lying." 

I had somewhat the same experience in principle, 
though the reverse in details, when my father was 
alive. We were for the cargo-owners, claiming insur- 
ance for total loss. After the first trial of the case, 
and as it was about to be tried again, our chief wit- 
ness told us for the first time that the ship had been 
scuttled, and said he would tell this to the other 
side if our clients did not pay him $4000. The other 
side had not even suspected scuttling; but we went to 
them, told them the story of our chief witness, and 
urged that they should have him indicted, both for 



36 RICHARD HENRY DANA, JR. 

his perjury at the first trial and for his own crimi- 
nal acts in connection with the scuttling he had dis- 
closed to us. Fortunately, the case had not been 
concluded before we found by new and unsuspected 
evidence that our clients were in the right after all, 
and that our chief witness had got up a false story 
for the purpose of this blackmail, and we were able 
in the end to make a favorable settlement. 

If, indeed, a lawyer should permit himself to pre- 
judge his client's case, and only to take such side as 
he believed the more likely to be true, who would 
have been found to defend Desdemona, after the 
incriminating handkerchief had been seen in Cassio's 
hands, after she had been heard to befriend him, 
speaking of "the love I bear to Cassio," and after 
Cassio's (seeming) confessions.^ The true attitude of 
the lawyer may be given in the words of Professor 
Greenleaf, which Mr. Dana wrote in his journal about 
the time of opening his law office : — 

"A man who begins law properly and studies it 
philosophically, will never find it dry. And if he 
practices it upon the principles of Christianity and 
professional honor, and conscientiously as a man and 
a member of the body politic, his interest in it will 
increase as he goes forward in life." 

Or again, in Mr. Dana's estimate of Charles G. 
Loring, in whose office he studied law: — 

"It gives me pleasure to combine my testimony 
with that of all others who knew him, to the high 
tone of professional morals and gentlemanly conduct, 
kindness, liberality and perfect fairness and integrity 
of that gentleman." 

We have been considering the orderly and logical 
mode of expression and the historical, literary, clas- 



INTRODUCTORY SKETCH 37 

sical and philosophical illustration with which Mr. 
Dana enriched his arguments, and the moral ground 
on which he practiced law. To complete the literary 
portrait, we ought now to go back to his grasp of 
fundamental principles of law, and his presentation 
of them before the court, on which we touched briefly 
in the early part of this sketch. 

While he was District Attorney of the United 
States, a most complicated case arose about the con- 
flicting claims of the United States Treasury and the 
State National Bank to certain funds, involving new 
points of law iyiter apices juris, and depending upon 
an intricate and much involved series of facts. Mr. 
Dana argued for some hours, following out the course 
of all the transactions, with dates, amounts, and 
names, without once referring to his notes or making 
a single mistake. I have more than once heard the 
story of this argument from lawyers engaged in the 
case. I do not remember all they said or exactly how 
they said it; but the general impression left on my 
mind might be expressed in the figure of a plant, with 
roots, stem, branches, flower, and fruit, all developing 
as if by magic under the warming climate of Mr. 
Dana's own creating. This held the attention and in- 
terest of the court in a way that might be illustrated 
by Morley's description of Gladstone's speeches on the 
budget: "Peel's statements were ingenious and able, 
but dry; Disraeli was clever but out of his element; 
Wood was like a cart without springs on a heavy road; 
Gladstone was the only man who could lead his hear- 
ers over the arid desert, and yet keep them cheerful 
and lively and interested without flaging." 

In the Peter York case, where Mr. Dana took the 
side of the accused, we can see the process of thought. 



38 RICHARD HENRY DANA, JR. 

York was accused of murder. Tlie killing by the de- 
fendant was proved, but there was a doubt as to the 
intent. If there had been malice aforethought, it was 
murder, punishable by death; if the act was done in 
the heat of passion, suddenly aroused, it was man- 
slaughter, followed by a lesser penalty. There was 
just enough evidence of passion from sudden con- 
flict to raise a reasonable doubt in the minds of the 
jury, but not enough for preponderating proof. 
Should the jury then find murder, or only man- 
slaughter.^ The answer to this legal question meant 
to his client death or life. It was an admitted prin- 
ciple of law that a crime must be proved beyond 
reasonable doubt in order to secure conviction. Mr. 
Dana contended that, as murder consisted of two 
parts, killing and malice aforethought, and as both 
must concur to make the crime, the government must 
prove the concurrence of both beyond the reasonable 
doubt. The government, on the other hand, con- 
tended that, having proved the killing, there was a 
presumption of malice aforethought, that is, of the 
worst possible motive, that the burden of proof 
"shifted" to the prisoner to dispi'ove this presump- 
tion, and that if the jury was in doubt as to whether 
or not there was such malice aforethought, it should 
be instructed to declare for murder. Mr. Dana 
argued that "from the mere act of killing, there is no 
presumption, in nature or from experience, that it is 
murder rather than manslaughter. Of all the homi- 
cides that are committed, few are found to be mur- 
der. A presumption of murder, from the mere fact 
of killing, is therefore contrary to reason and experi- 
ence, hence against liberty and life." 

The language employed in the text-books and 



INTRODUCTORY SKETCH 39 

judicial decisions was against Mr. Dana; but he 
maintained that this language, when traced back, 
either originated in the dark days of trial by fire and 
water, or arose from some obiter dictum of an early 
judge, in a decision not involving the present issue, 
and that no case was, on its facts, ever adjudicated 
against his proposition. The majority of the court, 
in a very learned opinion of twenty-five pages, by 
Chief Justice Shaw, decided for the legal presump- 
tion, from the killing, of the worst possible motive 
and a consequent death sentence; but Judge Wilde, 
in a dissenting opinion of nine pages, upheld Mr. 
Dana's contention; and, strange to say, it is this dis- 
senting opinion that is now the law in every Anglo- 
Saxon judiciary, including that of Massachusetts, and 
not only in cases of murder, but in proving motive 
in all crimes. 

Besides demonstrating the right rule of burden of 
proof in prosecutions, Mr. Dana's argument had 
much to do with emphasizing the true and now gen- 
erally accepted doctrine that, in determining law 
from precedents, we must look through the phrases 
employed by the judges in their opinions to the actual 
principles necessarily involved in the cases they have 
decided. To appreciate the change in this respect 
since 1845, a lawyer educated in such modern meth- 
ods as are employed at the Harvard Law School, for 
example, need only read Chief Justice Shaw's opinion 
in this case. 

Perhaps the way in which Mr. Dana brought sim- 
plicity of principles out of apparent chaos can best 
be stated by his own words, taken from his journal 
of September, 1854: — 

'*! take to myself the entire credit of the case of 



40 RICHARD HENRY DANA, JR. 

the Ospreyi just decided by Judge Sprague. It pre- 
sented the question directly, what the rule was when 
a steamer met a sailing vessel going free. ... A 
recent case of Dr. Lushington's, City of London 
(4, Notes of Cases), was directly against me. He held 
that, in such a case, each vessel must keep to the 
right. I carefully examined every case of collision 
in England and America, and made up my mind that 
there was a rationale which lay at the bottom of the 
whole law of collision, which had never been ex- 
pounded or even hinted by any judge or commen- 
tator, and which, if sustained, would overturn Dr. 
Lushington's decision and give me my case. I pre- 
sented it in full to Judge Sprague, in an argument of 
nearly four hours long, illustrating and enforcing it in 
every way in my power. I acknowledged it to be new, 
but told him that by propounding and enforcing it, 
he could do for the law of collision what the great 
Lord Holt did for the law of bailments in Coggs v. 
Bernard. The result was that, after a deliberation 
of ten days or so, Judge Sprague adopted and sanc- 
tioned it entirely, overruled the City of London, and 
gave me my case, and, what was more gratifying still, 
he adopted not only my positions, but my reasons, 
and did not add anything material to my argument." 
The rationale was delightfully simple, as is so often 
the case with discoveries. It is, "whether the two 
vessels meet on terms of equality or inequality . . . 
the vessel having the advantage takes the whole duty 
upon herself, and the other vessel keeps her course. 
If the favored vessel may keep her course, she must do 
so, that the other vessel may know what to depend 
upon." 

^ 1 Sprague, p. 245. 



INTRODUCTORY SKETCH 41 

Mr. Dana's view is still the established law of all 
nations on the high seas.^ 

How JVIr. Dana extricated the country from the 
dilemma raised by the Prize Causes during the early 
part of the Civil War will be told more fully in the 
notes to the Amy Warwick argument and his expla- 
nation of what the decision meant. 

In addition to Mr. Dana's naturally philosophical 
and logical mind, and his habit of going to funda- 
mental principles, his literary tastes and careful culti- 
vation of them, I wish to say a word as to his good, 
sound judgment. In how many instances of doubt 
and perplexity in the public mind, Mr. Dana's views 
have now become generally accepted! In the anti- 
slavery times, he was a Free Soiler,not an Abolitionist. 
He opposed extension of slavery to new states and 
territories theretofore free. He preferred Washing- 
ton's and Lincoln's ideas of gradual emancipation to 
sudden abolition of existing slavery. He felt that the 
preservation of the Union and the Constitution were 
matters too important to risk by agitation for ex- 
treme measures. He opposed the Fugitive Slave Law, 
not because it was improper to return fugitive slaves 
as the Constitution then was, but on account of the 
drastic and unjust provisions of that law itself." In 
the John Brown episode, before the Civil War, how 
calm was Mr. Dana's judgment! "I could see the 
courage and heroism of Brown, but to my mind, 
there was ... an unmistakable vein of insanity run- 
ning through it." Mr. Dana had been counsel for 

^ Act of Congress, August 19, 1890, and amendments August 13, 
1890, May 28, 1894, June 10, 1896; Arts. 20 and 21, adopted under a 
general plan of uniform code for the world. 

^ See introductory note to "Great Gravitation Meeting," -post. 



42 RICHARD HENRY DANA, JR. 

every fugitive slave, and for most of those who were 
indicted for rescue, and he plainly noted the differ- 
ence between a fugitive slave and the John Brown 
incident in these words: "When a man is escaping 
from slavery, it is a question between his freedom 
and his master's money . . . and in a question be- 
tween freedom and money, the sympathies of every 
man go with freedom; but an appeal to arms is a 
war of races . . . and I confess that, in a contest like 
that, my duty and my sympathies go with my own 
race." 

Had Mr. Dana's views more generally prevailed 
in the forties and fifties, we should have avoided the 
Civil War and the evils of sudden emancipation of 
the whole five millions of an enslaved race without 
preparation for freedom. Just as the Civil W ar was 
pending, he urged every reasonable conciliation with 
the South, but not submission to the claims of slavery 
extension. In the Prize Causes, it was good judgment 
and common sense, as well as good law, in Mr. Dana, 
wholly to acknowledge a great war against a de facto, 
though wrongfully formed, nation, and to point out 
that this course did not acknowledge the right of 
secession or independence of the confederacy, or allow 
other powers to acknowledge them. He turned the 
English acknowledgment of " belligerency " into an 
acquiescence on the part of Great Britain in our right 
of blockade. 

In the Trent affair, when Mason and Slidell were 
taken off that British steamer by an American war 
vessel, Mr. Dana believed that we should take Eng- 
land's former attitude, and refuse to return these 
gentlemen. England up to that time had always 
claimed the power of taking persons out of neutral 



INTRODUCTORY SKETCH 43 

vessels in time of war; but when it appeared that 
England was ready to abandon her old position, ^ in 
favor of the opposite contention of the United States, 
urged since the days of armed neutrality in the 
Revolutionary War, through the War of 1812, and 
up to 1861, Mr. Dana's sound sense, as well as his 
knowledge of international law% made him heartily 
acquiesce in the return of these men. In 1862, when 
Mr. Lincoln was being severely attacked, Mr. Dana 
had the good judgment to appreciate the great quali- 
ties of Lincoln, and stood up in his defense at the 
Worcester Republican Convention. 

As to his arguments that changed the law of colli- 
sions at sea, and the shifting of the burden of proof 
in criminal cases, one sees at bottom the sound, 
practical common sense leading to conclusions, which 
no mere logic can account for. At the beginning of 
the reconstruction period, he showed that we must 
carry out the purposes for which the war was fought; 
and in his "Grasp of War" speech showed the prin- 
ciples upon which that could be done under our 
Constitution. It was very easy then to be misled into 
all sorts of technical and subtle reasoning; but Mr. 
Dana had the good sense and sound judgment to con- 
strue the Constitution so as to allow unusual powers 
in unusual circumstances as to which that instrument 
was silent. At that time, he had the good sense to see 
that the freedmen should be granted the franchise 
only on educational and property qualifications, and 
to make a clear distinction between social or race 
equality, in which he did not believe, and equality of 
political rights under the law. It was a certain sound 

^ See letter of Adams to Seward, Dec. 27, 1861, Diplomatic Corre- 
spondence, 1861-62, p. 13, and Dana's Note to Wheaton, pp. 644-649. 



44 RICHARD HENRY DANA, JR. 

judgment that made Mr. Dana espouse the repeal of 
the usury laws in Massachusetts. 

Many political reforms of uncertain value have 
been urged with great vigor, and others of only sec- 
ondary importance. Such do not go to the root of 
the evils, nor affect the motives which govern the 
actions of men. In "Points in American Politics," 
written in 1876,i Mr. Dana showed his sound sense 
in selecting for presentation the really urgent needs 
of our country. He started off by laying down the 
fundamental principle of all civic reform in the propo- 
sition that frauds in government will always be found 
wherever affairs are controlled by human beings; 
''hut the extent of the frauds will depend upon the temp- 
tations offered.'' 

This principle he proceeded to apply to the manner 
of electing the President of the United States. Presi- 
dential electors, he showed, are allotted to each state 
and chosen by the state at large; consequently the 
area for the operation of a single fraud is the entire 
state, and it may determine the choice, not of one 
elector, but of thirty or forty, which, taken from one 
party and added to the other, might make a differ- 
ence of sixty or eighty in the Electoral College of some 
four hundred. In this article, Mr. Dana advocated 
the election by Congressional districts, each district 
electing one presidential elector, so as to confine the 
area of a single fraud to the one district, and so deter- 
mine not forty, but only one electoral vote, and thus 
reduce the temptation to invest much capital, labor, 
or risk in that kind of fraud. The sound sense of this 
is quite generally acknowledged. 

Another application of the general principle he 

Published in the North American Review, January, 1877. 



INTRODUCTORY SKETCH 45 

made to the presidential tenure of office. The four- 
year term of our national executive, with the right 
of reelection, lays the president open to the tempta- 
tion of manoeuvring for renomination and reelection; 
and Mr. Dana advocated a longer term of, say six 
or seven years, and ineligibility afterwards, as re- 
moving the temptation and yet giving a president 
time in which to carry out his policies. This same 
arrangement, he showed, would also reduce the fre- 
quency of the exciting and unsettling process of 
*' king-making," with its consequent partisan activi- 
ties in our republic. 

Mr. Dana also showed the enormous temptations to 
use, for partisan and personal purposes, the unlimited 
power of appointment and removal over the one hun- 
dred thousand federal office-holders, as they then 
numbered, with their united salaries of over one hun- 
dred millions a year. He showed how fidelity to the 
political and electioneering service of the member of 
Congress procured appointment; how this made the 
employees of the custom-house and post-office "the 
praetorian guards and corps of janissaries for congress- 
men, paid from the public treasury"; how to the 
fight for the spoils of office was attributable much of 
the "corruption of those various demoralizing labors 
known by the names of pipe-laying, log-rolling, cap- 
turing and managing of caucuses and conventions," 
and its bad effects on the members of Congress: — 

"It nurses a love of power over individuals, it 
accustoms them to look to the selfishness of men, 
their fears and their cupidity, as the sources of their 
own influence and the means of their advancement. 
It occupies a large portion of their time to the exclu- 
sion of their proper public service. It allows them to 



46 RICHARD HENRY DANA, JR. 

believe that their reelection or promotion depends 
more upon the manner in which they have managed 
their patronage than upon the part they have taken 
and the labors they have performed in the service 
of the nation." 

This was written before the civil-service-reform 
addresses of George William Curtis. The principle has 
never been better stated. To remove this great temp- 
tation, with its consequent evils, Mr. Dana suggested 
civil-service reform, which he had long advocated in 
its days of unpopularity, and which, although applied 
to-day to only about two thirds of our enormous fed- 
eral service of nearly three hundred and fifty thou- 
sand places, has done so much to remove those temp- 
tations and evils. 

In this article, he exposed the temptation to use the 
United States troops in the South for the interests of 
the Republican party, and though himself an ardent 
Republican, strongly urged the withdrawal of the 
federal troops months before President Hayes took 
that remarkable and patriotic action. 

Lastly, if not too much an anti-climax after subjects 
of national importance, let me mention a purely local 
matter, — that of making the Charles River at Bos- 
ton a great water park. Mr. Dana's interest in the 
sea led him to devote much time and thought to Bos- 
ton Harbor, and, as a corollary, to the Charles and 
Mystic rivers flowing into it. When plans were being 
considered for the layout of the streets in the Back 
Bay district, before any of the section west of the 
Public Garden had been filled in, he advocated a bou- 
levard along the water front of the Charles River 
Basin, with houses fronting over this and looking 
towards the river. That plan was defeated by land- 



INTRODUCTORY SKETCH 47 

holding interests which saw a chance to crowd in more 
building lots by another scheme. Like untutored 
farmers and fishermen, Boston backed its houses on 
its best view. 

Afterwards, in 1875, he urged with great force, as 
the next best plan, filling in behind the Beacon Street 
houses next to the river, a space sufficient for an ave- 
nue, grass and shrubbery, in place of what he called 
"Scavenger Alley," that narrow, muddy, rutty pas- 
sage, which, with its tin cans, ash barrels and waste- 
paper, disfigured the margin of the river for so long, 
to the disgrace of Boston's good taste and public 
spirit. 

Now, after thirty -five years. Scavenger Alley, or 
Boston's "Rotten Row," as it has sometimes been 
called, has been replaced by a river park somewhat 
like Mr. Dana's "next best plan." But now that we 
have this river park, the public sees only the backs 
of the houses adjoining it. How much better would 
have been the first scheme which Mr. Dana, with his 
sound judgment and wise forethought, so earnestly 
urged, and which now we can never have ! 

I would also say a word as to his unusual powers 
in debate. I shall give two examples, — the repeal 
of the usury laws in Massachusetts and the support 
of Lincoln, — of which I have just spoken. As to the 
first, there was then no organization of business men, 
no special effort outside the legislature for the repeal 
of these laws. It was wholly the influence of a single 
debate by Mr. Dana that, to the surprise of the public, 
brought about the result. As to the latter, the late 
Senator Hoar has repeatedly stated, with great em- 
phasis, that Mr. Dana's support of Lincoln at the 
Massachusetts Republican Convention in 1862, was 



48 RICHARD HENRY DANA, JR. 

the most remarkable instance he ever knew of a large 
body of men who had publicly committed themselves 
to a course, being persuaded by the argument of a 
single man to change their minds and do the reverse.^ 

Notwithstanding Mr. Dana's natural ability, care- 
ful preparation, sound sense, eloquence, and hard 
work, he did not achieve the high political career for 
which he was undoubtedly ambitious. His friend, 
Judge Hoar, thought his "Episcopalianism" stood 
in his way, and that he would have done better if 
he had been a Congregationalist, — one might add, 
still better if a Methodist. Some of his friends 
thought him at times too "aristocratic." To this, 
his near-sightedness, inability to recognize faces 
quickly, a certain dignity of bearing, and his high- 
mindedness lent force; though, in so far as it existed, 
it was strangely inconsistent with his thorough de- 
mocracy concerning human rights, his siding with 
the oppressed with such ardor and courage, and his 
condemnation and even ridicule of aristocratic tend- 
encies or reliance on family name and prestige in a 
country like ours. A little more of this, and of his 
kindness and friendship for the humble, I shall set 
forth in the Introduction to the "Letters from a 
Father to a Son." 

Sometimes he was impolitic in his open denuncia- 
tion of what was low and mean in public life in gen- 
eral and in public men in particular, and he was often 
put forward to say the word that others shrank from 
speaking. It may be well to give one case, as illus- 
tration, which he related to me. Judge Clifford had 

^ The reversal was complete with the mass of the convention, but the 
leaders who were on the committees, by adroit tactics, partially thwarted 
Mr. Dana and the convention itself. 



INTRODUCTORY SKETCH 49 

been made Justice of the United States Supreme 
Court from the New England district, and had the 
appointment of a United States Commissioner, a 
sort of minor judge. Ability in that position was of 
the greatest importance, and the Bar Association 
had two or three candidates to suggest; but it learned 
that the Judge had a candidate of his own, who did 
not have the confidence of the Bar. Mr. Dana was 
chairman of the committee appointed to see Judge 
Clifford. It was a delicate matter. No lawyer prac- 
ticing before the United States Courts could well 
afford to incur the ill-will of so powerful a person as a 
Justice of the United States Supreme Court. In the 
interview, Judge Clifford replied that he would be 
glad to please the Bar of New England, but said, 
*' Gentlemen, you should know that when my con- 
firmation in the United States Senate was long in 

doubt, Senator came to my support and turned 

the tide in my favor. He wants this man appointed, 
and I must do as he wishes." To this principle of 
appointment my father felt obliged to make a pro- 
test. He afterwards felt that Judge CHfford never 
quite forgave him. 

It may be interesting to know what Mr. Dana him- 
self regarded as the chief stumbling-block to his 
public career. He believed it was the existence of the 
"spoils" system in American politics. He could not 
reconcile himself to the idea of securing personal 
success in politics by the use of public patronage, 
nor could he acquiesce in indirect participation of this 
breach of trust by others. His journals have frequent 
references to the evils of the system. "The state 
of mind of poor Cheever," the capable lighthouse- 
keeper at the Isles of Shoals, in August, 1843, anxious 



50 RICHARD HENRY DANA, JR. 

to keep his place, but not knowing which way to turn 
in the political chaos, is well told in the Life,^ a case 
"which illustrated the unhappy state of our country," 
as Dana says. Later in the same year, Cheever calls 
on Mr. Dana for help, having been removed without a 
hearing from his means of living. Mr. Dana, in the 
journal, describing the abject state of mind of the 
distracted man, writes that Cheever "would support 
the administration if they would give him his place," 
and ends the account with the remark, "I detested 
this vicious system, which is corrupting the morals 
of the republic." In 1854 he writes out a statement, 
made by Sumner, of the secret sessions of the Senate: 

"Since I have been in the Senate, some thousands 
of nominations have been acted upon, and whether 
confirmed or rejected, the test openly and unblush- 
ingly put now, in debate, by Senators, is the test of 
fidelity to the slave power. At first it was the Fugi- 
tive Slave Law. Now it is Nebraska. It is not enough 
that he be of the ruling party, the least suspicion of 
infidelity to the Southern policy of the party is fatal. 
The most minute and gossiping evidence is gone into, 
on each side, pro and con, to prove or throw in doubt 
the position of the nominee, but the fitness for the 
office is not alluded to. Only in two instances, posi- 
tively, only in two instances, can I remember that 
the moral character or fitness of the nominee have 
been alluded to." 

Later, he quoted another remark by Sumner, made 
after the Republican party had been long in control. 
Fidelity to the slave power was no longer the test, 
but there was still the same neglect, in executive- 
session debate, of moral character and fitness. In 
^ Vol. i, pp. 91-93. 



INTRODUCTORY SKETCH 51 

*' Points in American Politics," already referred to, 
Mr. Dana speaks of civil-service reform as going 
"deeper into the political life of the nation than any 
other" matter of "legislative or executive policy." 

Those were the days when the advocacy of civil- 
service reform required moral courage. It was before 
the formation of any civil-service reform association, 
and such advocacy was an obstacle to the advocate's 
political preferment. There were in public life a few 
men of high character; but even they, in order to 
keep their positions, had to aid in all the "pipe- 
laying" and "fence-building" of the local "ma- 
chines," by recommending removals and appoint- 
ments in office to suit the "boys." If the "machine" 
which really dictated nominations for elective offices 
in Massachusetts in those days, as it still does in 
some other states to-day, felt that a man really meant 
to refuse to give the offices to the workers, then, in 
the words of Professor Child, referring to my father, 
"they would have none of him." Preaching reform 
of the spoils methods before election " spread a cold- 
ness over" the "professional politicians," very like 
the proverbial effect of a sermon against stealing 
chickens on a darky meeting in the South just before 
Christmas. 

In the Hayes-Tilden campaign, Mr. Dana made a 
political speech in Cambridge. He held his large audi- 
ence, with men standing in the back passages and half- 
way up the aisles, through nearly two hours. At times 
you could hear a pin drop, and yet the address was 
dispassionate, with a few passages of what is called 
"eloquence." Many who had come in doubt left as 
strong supporters of Hayes. Some Cambridge Re- 
publicans urged that Mr. Dana be asked to repeat 



52 RICHARD HENRY DANA, JR. 

this speech all over the state; but he had spoken too 
much and too earnestly about civil service reform, and 
so the request never came from the managers. 

Even those great leaders, who were too high-minded 
to have inaugurated such a system, and who disliked 
it, yet acquiesced in it, and failed to denounce it. 
Naturally they were somewhat bitter toward civil ser- 
vice reformers, who, in attacking the system, attacked 
what these leaders had taken part in and profited 
by. I well remember, in 1888, going to one of these 
public men, who was a real civil service reformer at 
heart, and who supported the cause when it came 
to a vote in Congress. I had been intrusted by the 
National Civil Service Reform League with the task 
of getting a good plank on the merit system inserted 
in the Republican platform. This public man was a 
member of the Committee on Resolutions of the 
National Republican Convention, then being held at 
Chicago. The words "civil service reform" were to 
him, however, like a red rag to a bull. He spent the 
whole twenty minutes he had to spare in most rabid 
denunciations of George William Curtis and his whole 
flock. I could not get in a word "edgewise." He did 
not even look at my draft, and I had to go to a young 
delegate, not then prominent, Mr. Samuel W. McCall, 
now M. C, and he managed- to get the plank adopted. 
Indeed, one of the incentives for attacking the spoils 
system, one of the objects mentioned in civil service 
reform literature, is that, by abolishing patronage, we 
abolish that which keeps out of politics, by the very 
necessity of the case, many of the high-minded men 
we most desire to have represent us. 

Had Mr. Dana's lot fallen in another country, 
where, or in this country at a time when, the spoils 



INTRODUCTORY SKETCH 53 

system did not prevail, his character, ability, cour- 
age, eloquence, sound sense, diligence, and attain- 
ments might have had a better chance to bring him 
that public career for which his friends have testified 
they thought him so eminently fit. 

Yet his public career was not wholly wanting in 
honors. President Lincoln, through his Secretary of 
State Seward, in the most flattering terms offered 
him the position of Secretary of the Navy, on the 
supposition that Gideon Welles was about to resign. 
Mr. Welles reconsidered his project of resigning, and 
the appointment of Mr. Dana was not made, nor 
could the knowledge of the offer be published at the 
time. Mr. Dana took a conspicuous part in the 
famous Constitutional Convention of 1853. Of his 
work in that Convention, Mr. Adams says in the 
Memoir: "There was no man in the Convention who 
rose more rapidly or into greater prominence as a 
debater than Mr. Dana." He was offered a nomina- 
tion to Congress, which meant an assured election, 
early in his career; but he had to refuse it for want of 
adequate means, which he felt a congressman should 
have in order to maintain his independence. 

He had, as he said, "the privilege of being counsel 
for every fugitive slave and for most of those who 
were indicted for rescue"; and the reputation that 
he gained in the Prize Causes, already referred to, 
and the taking part in establishing the policy of the 
United States, as shown in the note to the Prize 
Causes, gave him great satisfaction. 

While in the State Legislature for two years, he 
made one of the great speeches in the history of that 
body. It was on the repeal of the usury laws. He was 
made chairman of the Judiciary Committee, which 



54 RICHARD HENRY DANA, JR. 

was the position of the leader of the House, after only 
one year's service. He was offered the position of 
Minister to Russia, and a seat on the Supreme Judi- 
cial Court of Massachusetts, both of which he de- 
clined. He was chosen counsel for the United States 
in the matter of the prosecution of Jefferson Davis 
for treason. In this he took the position, and so 
advised the government, that it was unwise to pro- 
ceed, partly because it would be impossible to con- 
vict before a jury drawn from any of the scenes of 
Mr. Davis's overt acts, namely, the Confederate 
States, without excluding every man with secession 
sympathies, which in effect would look very like 
packing the jury with those of Northern feelings ; while 
to try him in the North, for example in the State of 
Pennsylvania, on the ground that some of the troops 
of which he was the nominal commander-in-chief had 
invaded that state, would look very like changing the 
venue to secure conviction; that to punish one man, 
though a leader, and let others off who were as much 
if not more to blame for secession, would create a 
feeling of unfairness ; and mainly, he took the broader 
ground that our policy should be to reunite the coun- 
try into one lasting union, and for this, a magnani- 
mous course of pardon was more effective than pun- 
ishment. In this way, his advice was against his 
chance to increase a reputation which the trial of 
such a great national cause would have done. 

He was also selected as chief counsel for the United 
States in the Fisheries Commission, held at Halifax 
in 1877, being a part of the arbitration arranged for 
under the Alabama Treaty. He undertook this case 
at great disadvantage, as the Treaty itself, as appears 
in the notes to Mr. Dana's argument before the Hali- 



INTRODUCTORY SKETCH 55 

fax Commission, had given away the chief part of 
our case, and prevented our proving rights to which 
he believed we were really entitled, and which, if 
proved, would have greatly cut down the Canadian 
claims. 

Though Mr. Dana's nomination for Minister to the 
Court of St. James by President Grant was not con- 
firmed in the Senate, yet, as shown in the "Letters 
from a Father to a Son," it was confirmed by public 
opinion of the leading people throughout the country. 

As to his professional career, it is told in the Life 
how successful Mr. Dana was as to the number of 
cases he tried in court, and the proportion of verdicts 
he obtained; and from the point of view of income, 
how frequently, though not always, he was on the 
side of the poor man, the sailor, or the fugitive slave, 
and how his attitude on the slave question, though 
he was not an extremist, not an Abolitionist, pre- 
vented his having many rich and influential clients; 
how, for example, an article had appeared in the 
papers urging Boston merchants not to retain him; 
yet the one critical point in his professional career 
is not set out in the Life. This was told me bj^ the 
late Mr. Lewis S. Dabney, partner of Mr. Dana after 
his resignation as United States District Attorney, 
on the inauguration of President Andrew Johnson's 
famous "bread-and-butter policy." At this time, 
in 1866, all the opposition to Mr. Dana from the 
wealthy merchants on account of his anti-slavery 
principles, had vanished. The tide of sentiment dur- 
ing the Civil War had turned in Mr. Dana's direc- 
tion. His great success in the Prize Causes, and the 
economic and able administration of his office, as well 
as his court work as United States District Attorney, 



56 RICHARD HENRY DANA, JR. 

had brought him still more prominently forward at 
the bar. At this time, Mr. Dabney said, the largest 
cases in Boston were brought to him; but, at this 
point of his life, having saved a moderate sum of 
money, and feeling that this was his chance to begin 
the political career he craved, he decided to enter 
the Massachusetts Legislature. To his two years' 
work there, he devoted his best talents and almost 
the whole of his time and thought. Case after case, 
involving large amounts, was turned away from the 
office because Mr. Dana could not attend to it. The 
result but illustrates the saying that "Law is a jeal- 
ous mistress, and the one thing she will not forgive 
is attention to another." Big cases like those he re- 
fused, and such as would have given him one of the 
largest incomes at the bar, did not come to him again 
when he went back to his office after these two years 
in the legislature; indeed, it took several years of 
heartrending waiting before he attained his former 
annual income. He managed, however, during the rest 
of his life, to save enough property indirectly, by add- 
ing to and greatly increasing the value of a trust fund, 
to leave his widow a good home and a fair income. 

As to relaxation and recreation, Mr. Dana was 
indeed going at a killing pace all through his early 
and middle life, even forgetting at times to eat his 
noon-day meal. Let me give an account of one day's 
work, not told in the Life, found in his journal under 
date of March 8, 1853: — 

"Monday night (7th) I lectured at N. Bridgewater. 
After an early breakfast left for Boston where I ar- 
rived soon after 9, argued Rand and Mather before 
the full bench Sup. Ct., closing at 2 o'cl'k, without 
dining took 23/^ train for Dedham, and began the 



INTRODUCTORY SKETCH 57 

trial of Bigelow and Wood immediately on my arrival 
— Immediately on adjournment of the Court took 
cars for Boston and thence coach to Charlestown and 
lectured l^i on Burke, returned to Boston, had an 
interview with Dr. Townsend who is a witness in White 
V. Braintree and thence to Cambridge — all this time 
eating nothing but a few figs and a sandwich in the 
coach — a pretty good day's work!" 

He had less of what is called "amusement" than 
most men; but, it must be remembered, he enjoyed 
intellectual occupation more than most people, and 
got relaxation from what would appear hard work 
to others, while through it all he had a hopeful, 
buoyant nature, a great sense of humor, and was 
extremely fond of his home. In the midst of a hot 
summer, with cholera epidemic in Boston, just hav- 
ing lost a hard-fought case, "reserving" only "a 
point of law," having just been ill with symptoms of 
cholera, living and spending his nights in town, and 
tied close to his office, with plenty of cause for gloom, 
see how joy triumphs. In his journal of August 17, 
1849, he writes: — 

"Have entirely recovered and am remarkably well 
in the midst of so much sickness. For which God be 
praised. This general sickness and mortality has 
impressed upon my mind the frailty and uncertainty 
of human life, the certainty of death and eternity. I 
trust it has had a proper effect upon my life and my 
habits of mind and thought. How true are the melan- 
choly words of Hamlet: 'If it be now, 't is not to come. 
If it be to come, 't will not be now. If it be not now, 
it will come, the readiness is all!' [evidently quoting 
from memory, and then ends] How much I have to 
make life desirable! Has any man more.^" 



58 RICHARD HENRY DANA, JR. 

As I think of his buoyancy and joy in living and 
working, I say, in the words of George Meredith, 
descriptive of Diana of the Crossways, "A linnet 
sang in his breast, an eagle lifted his feet." 

One of Mr. Dana's great powers was that of a ra- 
conteur; but he also had ready and spontaneous wit 
and repartee. The tradition of his presiding at the 
Phi Beta Kappa dinners in the early seventies, and 
showing those qualities in rare degree, lasted for 
many years. As late as 1909, several older members 
spoke of it to me at the dinner. I well remember a 
dinner of the Lawyers' Club at his house, No. 361 
Beacon Street, about 1874 or 1875. There were gath- 
ered the leaders of the Boston Bar, and I, a law-stu- 
dent at the time, was admitted as a guest. I remem- 
ber how his face lighted up, the quick repartee, the 
lively humor, the laughter-giving wit, with which he 
enlivened his end, and not infrequently the whole 
of the table. He was noted for his laughter. I went 
once to see the elder Sothern as Lord Dundreary, and 
sat in the gallery. Some one on the floor led the bursts 
of laughter with quick appreciation of the points. 
This was so marked that I looked to see who it was, 
and found it was my father. Indeed, his sense of 
humor sometimes struck him on most incongruous 
occasions, as at funerals and the like. While at home, 
he was the life of the family, and many of his friends 
have said, as I have felt, that, long after his death, 
when they heard a funny story or a bit of quick re- 
partee, as well as some important public news, their 
thought was, "I must tell this to Mr. Dana." 

During one period only, when, in 1869-70, he was 
suffering from a combination of ill-health, caused by 
sewer-gas poison during the days when people ad- 



INTRODUCTORY SKETCH 59 

mitted the anacondas of drains into their houses with- 
out making them harmless with traps and vents, and 
feeling the worries from a smaller professional in- 
come than he had been accustomed to, was he de- 
pressed. He fully recovered his health and spirits, 
however, by a voyage to Scotland and back, in the 
summer of 1870. 

As Mr. Adams states in the Life, Mr. Dana has 
been called, by some of his wisest friends, a man of 
genius. He certainly was capable of great visions, 
without being visionary, and to his ideals he devoted, 
at times, "infinite pains." The night after the flog- 
ging of his two fellow-sailors off San Pedro, Cali- 
fornia, Mr. Dana, lying in his berth, "vowed that, 
if God should ever give me the means, I would do 
something to redress the grievances and relieve the 
sufferings of that class of beings with whom my lot 
has been so long cast." This vow he carried out in no 
visionary scheme of mutiny or foolish "paying back" 
to the captain, but by awakening a "strong sym- 
pathy" for the sailors "by a voice from the fore- 
castle," in his "Two Years Before the Mast," a book 
which has had much to do with securing the enact- 
ment of laws against flogging seamen, overworking 
and underfeeding them, and the like, all which ex- 
periences he had so well portrayed. After his "Two 
Years Before the Mast," with much the same pur- 
pose he wrote "The Seaman's Friend," setting forth 
the rights of sailors, as well as their duties, a book, 
by the way, which had been reprinted in England 
under the title of "Seaman's Manual," and which I 
found in 1875-76 was in use by the Admiralty judges 
and in the Navy of that country. 

Mr. Dana had a vision of manhood freedom, but 



60 RICHARD HENRY DANA, JR. 

he was not an Abolitionist. He had no visionary plans 
of arming the negro slaves, of opposition to the Con- 
stitution, that "compact with the devil," as some 
extremists called it, nor of secession from the slave 
states. He favored rather the abolition of slavery 
by degrees, as recommended by Washington in his 
letter to Lafayette of May 10, 1786, or by gradual 
purchase, as suggested by President Lincoln. He had 
a vision of one great and united country, and to se- 
cure this, in 1861, he made a speech at Manchester, 
New Hampshire, repeated at Cambridge, which at- 
tracted public attention throughout the country. 
At that time, the slave states were on the verge of 
secession, and he urged every reasonable concession, 
even the direct acknowledgment of rights of slavery 
in the Constitution, and the enactment of a reasonable 
fugitive slave law; indeed, every concession to the 
slave power except the forcible extension of slavery 
in free soil and the unjust provisions of the fugitive 
slave law then in force. His vision of justice was up- 
set by the barbarities of this same fugitive slave law; 
but he was not carried away by visionary schemes 
of punishing all those who carried out what the Su- 
preme Court had declared to be the law. On the con- 
trary, he defended Judge Loring against the petition 
to have him removed, on account of his decision 
against fugitive slaves, as more consistent with the 
vision of the reign of law, the only safeguard of true 
liberty. After the war was ended, he had a vision of 
securing the results of the war, and this he outlined 
in the first scheme of reconstruction policy, set forth 
in the resolutions which he drew up and which were 
accepted at Faneuil Hall July 10, 1866, and in his 
speech on their behalf; but these contained no vision- 



INTRODUCTORY SKETCH 61 

ary plan of universal negro suffrage, but one based 
only on property and education, nor of death to all 
"traitors," but of general self-government and am- 
nesty after acceptance of emancipation and union. 

He had a vision of long lines of patriotic and pub- 
lic-spirited citizens, who would follow the footsteps 
of their ancestors; but no foolish and visionary idea 
of an American aristocracy. He had a vision of faith 
in the American people; but no fatuous belief that 
the majority was always wise and right and the people 
free from failings; on the contrary, they needed lead- 
ers to reason with them, reforms that would take 
away special temptations and dangers, such as lurked 
in the spoils system, the restraint of a written con- 
stitution and stable laws, interpreted and enforced 
by an independent judiciary, to prevent haste, vio- 
lence, or injustice in the exercise of their powers. 
He had a splendid vision of a great party, acting from 
pure principle, a vision which he first saw at the 
Buffalo Free Soil Convention in 1848, which was the 
beginning of the Republican party; but he did not 
follow party ties to an extreme. He sacrificed him- 
self as one of the first Independents in politics in his 
hopeless run against the "regular" candidate of the 
Republican party for Congress in 1868, Benjamin F. 
Butler, when Butler stood on a platform of paying 
the government bonds in greenbacks. 

He had a vision of an historic church, with an an- 
cient liturgy consecrated by generations of use and 
approval, "the united prayers and praises, the com- 
mon worship, the confessions with the mouth, the 
anthems and ascriptions, the regular reading of 
Scriptures, the 'Christian Year' with its returns of 
solemn observances, the sacraments exalted to their 



62 RICHARD HENRY DANA, JR. 

proper place," all carried on with dignity and rever- 
ence, and round which cluster the tenderest associa- 
tions of each devout Christian; but he had no sym- 
pathy with those who would restrict the mercies of 
God to the few within the Church of England and 
its American branch, who held special views. While 
he had "no doubt the Almighty has every variety 
of instruments working in every variety of ways to 
secure the well-being of his creatures,"^ neither did 
extreme ritual please, nor the one-man service satisfy 
him. 

No doubt Mr. Dana's life was, on the whole, a dis- 
appointment to him; but he kept up the same pluck 
with which, as a boy, he sprang past the hesitating 
crew of the Pilgrim, and, with John "the Swede," 
lay out on the bowsprit in snow, hail, and sleet off 
Cape Horn, diving beneath the great masses of water 
and holding on for life, till they furled the jib of their 
little 190-ton brig. The pathos of his life did not de- 
generate into sadness. He never for a moment let 
himself become a man with a grievance, no, not even 
on the loss of the English mission in 1876, so well 
told in the Life, nor at the "law's delay" before the 
master's report ended in his favor the Beach Law- 
rence suit, which had charged him with plagiarism, 
nor at the smallness of his professional income at times. 
The letters from Rome, even to the last, were full 
of humor and animation. The late W. W. Story, the 
sculptor, described to me a dinner which he gave to a 
party of American friends in Rome on Christmas Eve, 
1881, four days before my father's last and fatal ill- 
ness. Mr. Story said he had never seen surpassed the 
wit and brilliancy with which Mr. Dana led the con- 
* From the Journal of 1844. 



INTRODUCTORY SKETCH 63 

versation that evening. Of the same dinner, my father 
wrote in a letter that he had " never enjoyed such a 
company more." 

Well did Mr. Adams finish the Biography with a 
letter from Mr. Dana's old partner, the oracle of 
cultivated Boston, Mr. Francis Edward Parker, 
written shortly after my father's death, in which 
is this sentence: — 

"Buffeted as he had been for more than twenty 
years, disappointed in every high ambition of his 
life, fallen on evil times and evil chances, how bravely 
he kept his courage!" 



II 

JOURNAL ENTRIES OF CONVERSATIONS 
WITH "UNCLE EDMUND" 

Edmund Trowbridge Dana. Born, 1779. Died, 
1859. Harvard, 1799. 

" He is the last of those who connected my youth with Europe 
and art, and the great men and great events of fifty years ago." 
(Journal of R. H. Dana, Jr., 1859.) 

Called at Uncle Edmund's last evening [Dec. 6, 
1851]. He was very entertaining. Talked about his 
friend Arthur Maynard Walter and their good times 
together in London. He said he hardly knew which 
Walter preferred, the Theatre or the House of Com- 
mons. He enjoyed a front seat in the gallery as much 
as in the pit, and rubbed his hands when the house 
filled as much as when the curtain rose. He described 
a debate he heard on the bill for a levy en masse, when 
Bonaparte was at Boulogne. Pitt, Fox, Sheridan, 
Canning, and Windham spoke. Fox, he said, had a 
long back, was corpulent, with a narrow upper part 
and wide lower part to his head, heavy -looking, but 
with fine eyes. His manner was entirely without 
graces, and his utterance very rapid, but he was full 
of illustration and very interesting. Pitt, he says, 
had a less original mind than Fox, and less variety, but 
his manner was very impressive, his voice full and 
melodious, his utterance slow and emphatic, with 
a certainty and copiousness of speech which made 



CONVERSATIONS WITH UNCLE EDMUND 65 

you perfectly certain that he would not fail or be- 
come embarrassed or confused. His arrangement was 
methodical, and he made every subject clear. His 
moral character gave him great weight, and he was 
considered independent and disinterested. Sheridan 
looked and acted like a theatrical manager, full of 
flourish and graces. He was particularly severe on 
the late administration (Pitt's, for Addington was 
then premier), and Pitt replied. Sheridan had not 
spoken for a long time, and Pitt congratulated him 
on his recovery of his speech, and said he had been 
bottled up so long that he came out with a bounce. 
The next day there was a caricature, entitled "Un- 
corking Sherry," representing Pitt in a wine vault, 
each bottle being a likeness of a member, and Pitt 
with a towel and a bottle under his arm, drawing the 
cork, the bottle being Sheridan. 

Sir William Pulteney, who was then a very old man 
and the largest landholder in England except the Duke 
of Bedford, attacked Pitt's administration, and said 
he had wasted the public money, that the war was 
wrong, and our allies had taken our money and de- 
serted us. Pitt replied: "I may have spent the pub- 
lic money unfortunately, possibly unwisely, but not 
corruptly or selfishly. The men who sustained that 
war did it for the public good, not for personal profit." 
And pointing his long finger at Sir William, said, "I 
— never — elbowed — a — tenth — Scotch — cou- 
sin into office," etc., etc. Sir William arose in a rage 
and made a furious, incoherent reply. 

Canning had lately been married, and spoke in a 
white waistcoat and new buckskin gloves. Uncle E. 
said he saw the dust fly from them as Canning struck 
his hands together as he arose and before he began. 



66 RICHARD HENRY DANA, JR. 

Uncle E. was in the gallery when the famous inter- 
lude occurred that over-set the gravity of all but the 
solemn Speaker. There was a long interval of silence, 
with nothing whatever to do, while the House was 
awaiting some report. It became tedious and rather 
embarrassing. At last, a man called out from the 
gallery, "Mr. Speaker! give us a song!" No one 
could fully appreciate this who did not know the 
preternatural gravity of Abbott and the intense dig- 
nity of the Speaker in those days. The whole house 
and galleries broke out with laughter, but the Speaker 
rapped and sent up the officers to arrest the delin- 
quent. Uncle saw the man who did it, and when the 
officers came into the gallery, this man pointed 
towards a respectable, middle-aged Quaker, and the 
officers took the poor innocent out, neck and heels, 
and carried [him] before the grand assembly. He 
protested his innocence, and the mistake was so 
ludicrously apparent, that the House got into an- 
other fit of laughter, and the whole thing was dropped. 

In a call on Uncle Edmund [Jan., 1854], he told me 
another anecdote of Washington, which he had from 
Grandfather. During the visit at Valley Forge, ^ at 
the time when the cider was produced, a New Eng- 
land gentleman at the table told a story which took 
the fancy of Washington mightily. He lay back in 
his chair, completely overcome with laughter, and 
spread his handkerchief over his face. In a few mo- 
ments, he withdrew his kerchief, and appeared the 

Hon. Francis Dana, grandfather of R. H. Dana, Jr., visited Washing- 
ton at Valley Forge in 1779, having been appointed by the Continental 
Congress chairman of the committee on the conduct of the war, with in- 
structions to proceed to Valley Forge and to report. 



CONVERSATIONS WITH UNCLE EDMUND 67 

grave man again; but in half an hour afterwards, this 
story suddenly came over him and he fell back in 
his chair again, fairly convulsed with laughter, and 
it was some time before he recovered his composure. 

This is to be remembered, because it is wrongly 
said that Washington never laughed. 

He also said that when he was in Virginia, in the 
Randolph family, he heard an anecdote of Marshall's 
visit to Mount Vernon. M. was an absent and rather 
negligent man. He was riding out to Mount Vernon 
with a party of gentlemen, on horseback, in the fashion 
of that day, with saddle-bags. When within a mile 
of the house, they alighted and opened their bags and 
made some change in their dress. Marshall, it seems, 
at the last tavern, had, in absence of mind, put over 
his horse's back the pair of saddle-bags that happened 
to be nearest to him, and had thus exchanged his for 
those of a plain farmer going to market; and when 
the other gentlemen took from their bags, coats, 
vests, and cravats, Marshall drew out two long 
squashes, a pumpkin, and some ears of corn. This 
threw the whole company into a fit of laughter. 
Just at this moment, Washington drove up, and sa- 
luted them, and inquired into the cause of the sport, 
and when they told him in broken language inter- 
rupted with bursts of laughter, pointing to Marshall 
and his bags, Washington got off his horse and leaned 
up against him, hardly able to stand for laughter. 

Note. Substantially the latter story is told in the Life of Judge Jere- 
miah Smith, and repeated by Mr. Owen Wister in his "Seven Ages of 
Washington" (p. 94). There are some differences in detail. In the Life 
of Judge Smith, it is stated that it was a portmanteau instead of saddle- 
bags, that it belonged to a peddler instead of a farmer, and that Washing- 
ton "rolled on the ground in his laughter" instead of leaned up against 



68 RICHARD HENRY DANA, JR. 

his horse. The story as it appears in Judge Smith's Life was told by the 
Hon. Joseph Lewis, for thirty years a member of Congress, and who was 
called by Jefferson "residuary legatee of federalism in Virginia," to Mr. 
Mason. Mr. Mason told it to Judge Smith, who told it to a lady, who in 
turn wrote it down the evening after, and years later gave this written 
account to Mr. Morrison, Judge Smith's biographer. 

That the stories dififer in detail is good proof of substantial accuracy. 
Too much agreement in detail from different witnesses savors of 
"cooked-up" if not manufactured evidence, or at least as coming pretty 
directly from one common source. Note, for example, the differences in 
the accounts of the same incidents in the Gospels. The main point in 
these two accounts of this incident of Washington's life is that Washing- 
ton laughed, and laughed uproariously, at Marshall's plight. 



Ill 

THE BIBLE IN SCHOOLS 

[Mr. Dana's argument was in defense of a school committee 
of a Maine town, that had refused a child permission to attend 
the local public schools, on the ground that the child refused to 
be present when the English version of the Bible was being read. 
The father, a Roman Catholic, was a citizen of the town and 
a taxpayer, and he brought suit against the committee. 

The defense was that members of a school committee were 
public officers, that the law and constitution of the State of 
Maine gave these officers discretion as to what should be read 
and studied in the schools under them, that the law was clear 
that "a public officer, exercising a discretion, judicial in its 
character, cast upon him by law, is not liable to private action 
for damages unless he acts in bad faith or from malice." Mr, 
Dana then maintained that, as the Bible had always been read 
in the public schools of Maine, as the teachers omitted those 
passages in the Bible in which the translation was contested by 
the Roman Catholics, and as there was no evidence of special 
bad faith or malice, the members of the school committee were 
not liable in damages to the father. 

So much of the argument as regarded the constitution and 
statutes of Maine at the time (which have since been altered as 
to the reading of the Bible in the public schools), and the gen- 
eral doctrine maintained by Mr. Dana as to the personal liabihty 
of public officers, above stated, I have omitted, and include in 
this collection only the portion relating to the Bible itself. Mr. 
Dana suggested that the real remedy for the father, and others 
who agreed with him, was to appeal to the legislature to change 
the law, and not to the courts to get damages under existing law. 

Mr. Dana's argument was pubUshed and widely distributed 



70 RICHARD HENRY DANA, JR. 

by religious societies, and attracted much attention in the press 
of the country at the time.] 

It may be said that, in executing the power con- 
ferred on us by the statutes, we have gone to an un- 
reasonable length, and so far violated the common 
rights of the plaintiffs, as to make our course uncon- 
stitutional. Not conceding that this question is open 
to the plaintiffs, I take pleasure in meeting it freely 
and frankly. This is, of all others, the point on which 
my clients, supported by a unanimous vote of the 
late town meeting at Ellsworth, desire to meet their 
opponents. I take the ground, then, that 

[The Bible] has been used in the public schools 
of Maine since she has been a state, and while a part 
of Massachusetts, from the beginning. It is not re- 
quired as an act of religious worship, nor is there any 
allegation or pretense that doctrinal passages have 
been selected, or that it has in any way been used as 
a means of conveying instructions or impressions 
favorable to the peculiar tenets of any sect or denom- 
ination of Christians, and unfavorable to those of 
others, or that the passages in which the two trans- 
lations differ have ever been read in the school. The 
defendants do not put their case upon the ground 
that they, have a right to compel the reading of the 
Bible as a means of teaching the principles and facts 
of a revealed religion, in which many, as Jews, Mo- 
hommedans, and skeptics of all shades, do not believe; 
still less, the reading of this particular version, to 
which Roman Catholics, and other denominations 
of Christians, may object. The objection is to the 
use of the book at all. The Bible is a collection of 
books, sixty-six in number, the work of different 
writers, on various subjects, written at very remote 



THE BIBLE IN SCHOOLS 71 

periods of time, first called The Bible, The Book, 
by St. John Chrysostom at Constantinople, in the 
fifth century. In this collection there are portions 
historical, portions purely narrative, portions poeti- 
cal and imaginative, portions conveying by precept 
and parable moral lessons. As to all these portions, 
there is no contest on the point of translation. In- 
deed, there are only some half-dozen places in the 
whole collection in which the Douay Bible makes 
a dogmatic and doctrinal issue with the common 
English Bible. And, forsooth, this entire book, the 
noblest monument of style, of thought, of beauty, of 
sublimity, of moral teaching, of pathetic narrative, 
the richest treasury of household words, of familiar 
phrases, of popular illustrations and associations, that 
any language has ever possessed, is not to be read in 
schools, because the parents differ in opinion as to the 
translation of Merai^oT/crare. The contested passages 
have never been, so far as appears, read in the school, 
but the entire book, the whole sixty-six books, nar- 
rative, parable, history, moral law, psalms and spirit- 
ual songs, prophecy, all are to be banished, because 
somewhere, in some epistle, in a place never read in 
school, "repent" is not rendered "do penance"! 
Need I ask your Honors if our act is unreasonable.'^ 
Is not the objection far more unreasonable.'* 

What can these defendants do.'* They are obliged 
by law, they have no option, to see to it that the 
principles of morality and all the virtues shall be 
taught in the schools. They are to "take diligent 
care and exert their best endeavors " that these prin- 
ciples be impressed on the minds of the children and 
youth. The public-school system was intended to 
provide, as Chief Justice Shaw said, in Sherman v. 



72 RICHARD IIKNUV DANA, MX. 

(V/(?/7(>7()/r//, "a sysloni of moral Iraiiiiiig as well as 
soniiuarlos of loariiing." How can, principles of mo- 
ralily bo taught oxcopt on the basis of religion? A 
systoiu o( morality, not t'omuled on religion, is not 
morality, but only an enlightened self-interest. AVhalely 
says that the maxim "honesty is the best policy" 
is a true maxim, bnt that he who acts upon that 
maxim (Hily, is not an honest man. So is it with what 
is called morality, divorced from religion. 

Bnt our opponents may say that they do not object 
to the Hible, bnt to the translation. AVe cannot read 
the original in the seluH>ls. This is the common Eng- 
lish Bible, which has always been used. It is not a 
*' Protestant Bible." Great portions of the transla- 
tions w ere made by men in the bosom of the General 
Chnrch, before the Befin-mation, by AYicklitVe, Tyn- 
dale, Coverdale, and ALatthew. Testimony to its 
accuracy has been borne by learned men of the Ixoman 
Church. Leddes calls it "of all versions the most ex- 
cellent for accuracy, fidelity and the strictest atten- 
tion to the letter of the Text"; and Selden calls it 
"the best version in the world." As a well of pure 
English undefiled, as a fountain of pure idiomatic 
English, it has not its equal in the world. It was for- 
tunately — may we not, without presumption, saj^ 
providentially — translated at a time when the Eng- 
lish language was in its purest state. It has done 
more to anchor the English language in the state it 
then was, than all other books together. The fact 
that so many millions of each succeeding generation, 
in all parts of the w orld where the English language 
is used, rend the same great lessons in the same words, 
not only keeps the language anchored where it was 
in its best state, but it preserves its universality, and 



frees it from all material provincialLsms and j:)crfo^^, 
so that the same words, phrase.s, and idioms are 
used in Loudon, Xev, ^'ork, San I'raneiseo, Aiistralia, 
China, and India. 7'o preserv'e this unity and stead- 
fastness, the Book of Common Prayer has done much, 
Shakespeare, Milton, and Bunyan have done much, 
but the English Bible has done tenfold more than 
they alL 

From the common English Bible, too, we derive 
our household words, our pPirases and ilbistrations, 
the familiar speech of the ijeofjle. Our associations 
are with its narratives, its parables, its histories and 
its biographies. If a man knew the Bible in its origi- 
nal Greek and Hebrew by heart, and did not know 
the common English version, he would be ignorant 
of the s-i>eech of the people. In sermons, in public 
.speeches, from the p»ulpit, the ?jar, and the jjlatform, 
would come allusions, references, quotations, — that 
exquisite electrifying by conductors, by which the 
heart of a whole jjeople is touched by a word, a phrase, 
in itself nothing, but everj-thing in its power of con- 
ducting, — and all this would be to him an unknown 
world. No greater wrong, intellectually, could be 
inflicted on the children of a school, ay, even on the 
Roman Catholic children, than to bring them up in 
ignorance of the English Bible. As well might a 
master instruct his pupil in Latin, and send him to 
.sjjcnd his days annong scholars, and keep him in 
ignorance of the words of Virgil and Horace and 
Cicero and Terence and Tacitus. As a preparation 
for life, an acquaintance with the common English 
Bible is indispensable. 

The Douay Bible, on the other hand, was trans- 
lated on the Continent, by men of English origin, 



74 RICHARD HENRY DANA, JR. 

it is true, but who, banished from England by 
the Protestant persecutions, were not Englishmen in 
speech, in literature, in association, or in habit. The 
English ecclesiastics of the Roman Church, even to 
this day, in style and speech, as in habit and feeling, 
are un-English. Their literature, their training, their 
associations, are Continental. Much more so was it 
then, when England was closed against them. Their 
translation suffered accordingly. Where it does not 
agree with the common Bible, it is comparatively a 
piece of awkward, unidiomatic English. Even where 
its style may have been as good originally, the lan- 
guage has settled upon our basis, and not upon theirs. 
Even among Romanists themselves, it does not fur- 
nish the household words, the popular phrases, the 
illustrations and associations known to the people 
and cherished by their orators and scholars. One of 
those who has forsaken the communion of the Eng- 
lish Church has expressed himself in deeply touching 
tones of lamentation over all which, in forsaking our 
translation, he feels himself to have forgotten and 
lost. These are his words : — 

"Who will not say that the uncommon beauty and 
marvelous English of the Protestant Bible is not one 
of the great strongholds of heresy in this country.^ It 
lives on the ear, like a music that can never be for- 
gotten, like the sound of church bells, which the con- 
vert hardly knows how he can forego. Its felicities 
often seem to be almost things rather than mere 
words. It is part of the national mind, and the an- 
chor of national seriousness. . . . The memory of 
the dead passes into it. The potent traditions of child- 
hood are stereotyped in its verses. The power of all 
the griefs and trials of a man is hidden beneath its 



THE BIBLE IN SCHOOLS 75 

words. It is the representative of his best moments, 
and all that there has been about him of soft and 
gentle, and pure and penitent and good, speaks to 
him forever out of his English Bible. ... It is his 
sacred thing, which doubt has never dimmed, and 
controversy never soiled. In the length and breadth 
of the land there is not a Protestant with one spark 
of religiousness about him, whose spiritual biography- 
is not in his Saxon Bible." 

Throwing dogmatic theology out of the question, 
can any one doubt that the real question here is, 
not whether each child shall choose its version, but 
whether the Bible shall be read at alLf^ There are 
various translations. The Romanist thinks ixerapoeo} 
wrongly translated. The Unitarian thinks there are 
mistranslations and interpolations favoring the doc- 
trine of the Trinity. The Baptist thinks that ^aTrrt^co 
should be translated iiiwieise. And all of these have 
their translations. But all have heretofore agreed 
that the common English Bible should be read in the 
schools. If one is to insist on his version, another will 
on his. Confusion and scandal will be introduced, 
and few school committees or teachers will trouble 
themselves to enforce such a motley system as that. 
Besides, if there is a conscience against reading a dan- 
gerous book, will there not be equally a conscience 
against hearing it read.^^ But if there is a conscience 
in the Papists against hearing ixerapoeco called "repent," 
will there not be a conscience in the Protestant 
against hearing it called "do penance".^ No, may 
it please your Honors, until a uniform translation 
can be agreed upon, carefully avoiding controverted 
passages, as we have done, the Bible will not be read 
in the schools at all. And I feel that I am pleading 



76 RICHARD HENRY DANA, JR. 

here, to-day, for the Bible in the schools, and not on 
any question of option or choice in translations. If 
the Bible is not read, where so well can *'the prin- 
ciples of morality and all the virtues" be taught? 
"How infinitely superior," says Maurice, "is a gospel 
of facts to a gospel of notions!" How infinitely su- 
perior to abstract ethics are the teachings of the nar- 
ratives and parables of the Bible ! What has ever taken 
such hold on the human heart, and so influenced hu- 
man action! The story of Jacob and Esau, the un- 
equaled narrative of Joseph and his brethren, Abra- 
ham and Isaac, the pathetic and romantic story of 
Saul, the death of Absalom, Naaman the Syrian, the 
old prophet, the wild, dramatic, poetical histories of 
Elijah and Elisha, the captivities of the Jews, the 
episode of Ruth, unsurpassed for simple beauty and 
pathos, and time would fail me to tell of Daniel, Isaiah, 
Samuel, Eli, and the glorious company of the apostles, 
the goodly fellowship of the prophets, and the noble 
army of martyrs! Where can a lesson of fraternity 
and equality be struck so deeply into the heart of a 
child as by the parable of Lazarus and Dives? How 
can the true nature and distinction of charity be bet- 
ter expounded than by the parables of the widow who 
cast her mite into the treasury, and the woman with 
the alabaster box of precious ointment? Can the prod- 
igal son, the unjust steward, the lost sheep, ever be 
forgotten? Has not the narrative of the humble birth, 
the painful life, the ignominious death of Our Lord, 
wrought an effect on the world greater than any and 
all lives ever wrought before? — even on those who 
doubt the miracles, and do not believe in the Mys- 
tery of the Holy Incarnation, and the Glorious Res- 
urrection and Ascension! 



THE BIBLE IN SCHOOLS 77 

Remember, too, we entreat you, that it is at the 
school alone, that many of these children can read 
or hear these noble teachings. If the Book is closed to 
them there, it is open to them nowhere else. 

Nor would I omit to refer to the reading of the 
Bible as apart of the education of the fancy and imagi- 
nation. Whatever slight may be thrown upon these 
faculties by men calling themselves practical men, 
they are powerful agents in the human system, which 
no man can neglect or abuse with impunity. Pre- 
occupy, preoccupy the minds of the young with the 
tender, the beautiful, the rhythmical, the magnifi- 
cent, the sublime, which God in his bounty, and wis- 
dom too, has poured out so profusely into the minds 
of his evangelists and prophets! Nowhere can be 
found such varieties of the beautiful and sublime, 
the magnificent and simple, the tender and terrific. 
And all this is brought to our doors, and offered to 
our daily eye. If the mind of the youth, girl and boy, 
is not preoccupied by what is moral, virtuous, and re- 
ligious, the world is ready to attack the fancy and 
imagination with all the splendors and seductions 
of sense and sin. Their minds will have food for the 
imagination and fancy, and if they are not led to the 
Psalms, and Isaiah, and Job, and the Apocalypse, 
and the narratives and parables, they will find it in 
Shelley, Byron, Rousseau, and George Sand, and the 
feebler and more debased novels of the modern press 
of France. 

Following then the guidance of the statute, and 
acting in good faith, with no sectarian object alleged 
or offered to be proved against us, we trust we have 
made no unreasonable use of authority, in declining 
to remit the requirement of reading the common Bible. 



IV 

SPEECH ON THE JUDICIARY; MASSACHU- 
SETTS CONSTITUTIONAL CONVENTION 
OF 1853 

[In the Biography of Mr. Dana, Mr. Adams says of the Con- 
stitutional Convention: "Among its members were many of the 
principal Massachusetts public characters of the time, including 
Charles Sumner, Rufus Choate, Henry L. Dawes, Robert Ran- 
toul, Henry Wilson, Sidney Bartlett, Benjamin F, Butler, and 
both the Marcus Mortons, the father who had been governor, 
and the son who was subsequently chief justice. The convention 
was presided over by N. P. Banks. Though it was Dana's first 
appearance in a deliberative body, he at once came to the front. 
Indeed, there was no man in the convention who rose more 
rapidly or into greater prominence as a debater than did Dana." 

This speech is the most celebrated of Mr. Dana's in the con- 
vention, and has been reprinted several times when the question 
of the appointment and tenure of judges has come up in other 
states. Of this speech, Rufus Choate, who was present and heard 
it, said, "It has been magnificent. It is philosophical, affecting, 
brilliant, logical, everything." 

As matters stood then in Massachusetts, the judges w^ere ap- 
pointed by the governor and council for life. The issue, as Mr. 
Dana puts it in his journal at the time, is as follows: "At the 
committee. Governor Morton, Chairman, reported it inexpedient 
to make any change in the appointment or tenure of judges. 
Wilson moved an amendment to limit the term to ten years, 
they being all nominated by the governor. Dr. Hooker moved 
to amend that by making them elective by the people for terms 
of seven years. On these together came the debate." 

In the early days, all the judges of the thirteen states were 



SPEECH ON THE JUDICIARY 79 

appointed substantially in the same manner as in Massachusetts; 
but gradually in the fifties most of the states changed this 
method, usually with a view of " diminishing executive patron- 
age." As it stands to-day (1910) in Massachusetts, Delaware, 
Maine, New Hampshire, and for the United States federal courts 
and the courts of the territories and the District of Columbia, 
as in England, all the judges are appointed by the chief execu- 
tive. In Connecticut, Mississippi, and New Jersey, the judges 
of the highest court are appointed by the governor, — subject 
to confirmation by the senate in Mississippi and New Jersey, and 
by the legislature in Connecticut. In Rhode Island, South Caro- 
lina, Virginia and Vermont, the judges of the highest court are 
elected by the two houses of the legislature in joint convention. 
All other state judges are elected by the people. The terms of 
office vary from life-tenure in the federal courts, Massachusetts, 
New Hampshire, and Rhode Island, through periods varying 
from twenty-one years in Pennsylvania to two years in Vermont. 
The usual terms are six years for the highest courts and four 
years for the lower courts. Therefore, it is only in Massachu- 
setts and New Hampshire, and in the federal courts, that the 
judges are both appointed by the executive and hold oSice for 
life.^ 

The attempt to take the patronage out of the hands of the 
executive has only transferred the patronage to the party ma- 
chines; so that in New York, for example, the judicial candi- 
dates are subject to large assessments for party purposes, usu- 
ally equivalent to a whole year's salary, by the dominant party 
of the judicial district. ^ The state bar associations in many 
states, for example, in New York, have been active in suggesting 
nominations and courageous in openly opposing bad ones, and 
this alone has kept the bench as efficient as it is under the elec- 
tive system.^ 

^ See Constitutions of the United States, Frederic J. Stimson (1908), 
book iii, section 654. 

^ American Law Review, vol. xxii, p. 766. 

' For examples of the subserviency of judges to the ruling powers in 
politics under an elective judiciary system, see "The Beast and the Jun- 



80 RICHARD HENRY DANA, JR. 

The New York State Bar Association has a standing commit- 
tee "On the Selection for Judicial Office " with representation 
from each of the nine judicial districts. In Pennsylvania, on the 
authority of the Hon. William H. Hornblower, of New York, when 
addressing the State Bar Association of Massachusetts, no judge 
can be nominated by the predominant party unless he is approved 
of by the great railroad of the state. After years of experimenting 
with other methods in other states, almost every eminent lawyer 
throughout the country says that the Massachusetts system, for 
which Mr. Dana spoke, is far the best. 

Mr. Dana's speech had the effect of defeating the proposition 
of electing the judges; but the proposition for appointment by 
the governor and council for a term of years was adopted by 
the convention. It was this latter proposition which was the 
chief cause of attack on the Constitution proposed by the con- 
vention, and led to its defeat by a majority of about 6000 in a 
total popular vote of 125,000.] 

Mr. President: I suppose the Convention will 
agree with me, without argument, that the sub- 
ject which we are now upon is one of more enduring 
interest, and more universal concernment, than any 
that has been before us. It often happens, I may say 
it usually happens, that those subjects which are 
followed by the most serious consequences are not 
those which attract at the moment the greatest at- 
tention. They come often, like the kingdom of 
Heaven itself, without observation. So it would be 
if we should make this great fundamental change in 
our Constitution without full consideration. 

Why, Mr. President, we propose to change one 
of the great organic departments of the government. 
The government of Massachusetts is divided into 
three departments, the legislative, the executive, 

gle," by Ben B. Lindsey, of Denver, Colorado, in Everybody's Maga- 
zine, 1909-10. 



SPEECH ON THE JUDICIARY 81 

and the judicial. The feature which most charac- 
terizes the judicial department is the manner in which 
it obtains and holds its power, and that we propose 
to change essentially. A system which has existed 
in England from the birth of liberty to the present 
time ; a system which has existed in Massachusetts from 
the origin of the state to this hour; a system which 
has existed in our national government from the be- 
ginning; a sj^stem which exists in nearly all New 
England, and in almost all of the states of the Union ; 
a system under which our judiciary has grown up, and 
under which every man in the United States of Amer- 
ica has grown into manhood, — for those changes 
which have been made have not yet reared a genera- 
tion, — that system you threaten to subvert. And 
why.^ I ask, why.^^ 

It was said here when we came together, and it 
met the approbation of the Convention, and it has 
since been repeated frequently by judicious men, 
that we should make no changes unless there was 
some abuse. Is it not a fundamental maxim of 
America that no change should be made until you 
find an existing evil to be remedied.^ After achieving 
our independence, though smarting under the tyranny 
of England, almost hating the very name and sight 
of an Englishman, we yet adopted a Constitution 
very like that of England, more like it than any other 
that ever existed. Why.^ Because it was formed out 
of institutions which stood here. I take the liberty 
to say that the American system is this: a system 
which recognizes existing institutions; a system of 
adaptation ; a system of reforming abuses. The Ameri- 
can system is not to speculate, not to theorize, not 
to make experiments in government, but to take 



82 RICHARD HENRY DANA, JR. 

things as we find them, and adapt ourselves to them; 
to recognize the state of society and then make re- 
forms where there are evils to be reformed. Now I 
ask how, this being our philosophy, do you propose 
to treat the judicial department.'^ In the first place, 
is there any abuse existing .^^ Has any man heard of 
an abuse.^ I have not heard of it. Has it been said 
in this Commonwealth that the judicial department 
has encroached upon the executive.^^ I have never heard 
it. Has it been said that the judiciary has encroached 
upon the legislative department .^^ Has it been said 
that the judicial department is oppressing the people.^ 
Nobody has ever whispered it. Has there been a pe- 
tition to the legislature to change the Constitution 
in that particular.^ Petitions on other subjects have 
been presented; but I do not know of a single instance 
where a petition has been presented to either branch 
of the legislature, asking them to change the judi- 
ciary department. Is there a gentleman in this Con- 
vention who knows of an instance.'^ Is there any in- 
dication of a popular wish that this should be done.'' 
You may read articles in the newspapers written by 
one man; but have we any indication that the public 
wishes any change here.'' I have looked in vain for 
any indication of the kind. 

As regards offices, two things were proposed to 
be done: to elect certain officers, not being judges, 
and to diminish and not increase the power and pa- 
tronage of the executive. We have, then, the voice 
of a majority of the legislature in 1852, and the voice 
of two of the great parties in 1853, in favor of this 
Convention; and I look in vain for the slightest in- 
dication of any intention to change the tenure of the 
judicial department. I do not wonder, therefore, 



SPEECH ON THE JUDICIARY 83 

that my friend from Natick (Mr. Wilson) said yes- 
terday that he could not vote for an elective judi- 
ciary without an appearance of something like bad 
faith. He told this Convention, and he told them 
truly, that by his addresses and speeches, and by the 
one hundred and fifty letters — I sympathize with 
him — which he had written to all parts of the Com- 
monwealth on the subject of this Convention, he 
was so committed against an elective judiciary that 
he could not sustain it here. But he does not stand 
alone. If there is any gentleman of prominence 
enough to be noticed, who has gone into one town of 
Massachusetts, and presented the case of this Con- 
vention, and included in the issue an elective judi- 
ciary, I should like to know who and where he is. 
Every gentleman to whom I have spoken has told 
me that he has done no such thing, but quite the con- 
trary, — that he has studiously avoided raising that 
issue. 

Let us recollect the history of this Convention. 
In 1851 the proposition for a Convention was re^ 
jected by a majority of some four thousand, and it 
was very doubtful whether it would be adopted in 
1852. It was therefore necessary to conciliate all 
persons. I do not wish to state it upon my own 
knowledge, but I put it to the honor of every man, 
whether this question of a Convention was not put 
to the people last November upon an understanding 
that the judiciary should not be changed; whether 
there were not thousands of votes obtained through- 
out the state for this Convention, which would not 
have been given if it had been understood that an 
attack was to be made upon the judiciary system .^^ 
I confess that is not precisely the appearance with 



84 RICHARD HENRY DANA, JR. 

which I should wish to see so great a change auspi- 
cated. 

But I do not confine myself to the subject of an 
elective judiciary, for there are two propositions: the 
one is to make it elective, and the other is to limit 
the tenure of office. 

The twenty-ninth article of the Bill of Rights 
says : — 

"It is essential to the preservation of the rights 
of every individual, his life, liberty, property and 
character, that there be an impartial interpretation 
of the laws and administration of justice. It is the 
right of every citizen to be tried by judges as free, 
impartial and independent as the lot of humanity 
will admit. It is therefore not only the best policy, 
but for the security of the rights of the people, and 
of every citizen, that the judges of the supreme ju- 
dicial court should hold their offices as long as they 
behave themselves well." 

Now, I say, the amendment of the gentleman from 
Natick (Mr. Wilson) ^ is fundamental in its charac- 
ter; because it changes a provision which has existed 
since 1780, and which, since 1780, we have declared 
to be essential to the security of the rights of the 
people and of every citizen. He proposes to place 
the judicial department more or less under the con- 
trol and patronage of the executive. 

Now, Sir, did it ever happen that such fundamental 
changes were made by the representatives without 
some notice of a desire upon the part of the people 
that they should be made.^^ Do such changes come 

For the appointment of the judges of the Supreme Judicial Court 
for terms of ten years, and of the justices of the Superior Court for 
terms of seven years. 



SPEECH ON THE JUDICIARY 85 

from the people with no note of preparation, no pe- 
tition, no resolution, no speech, no public meeting, 
no signature, no address, with no man daring to open 
his mouth in a public meeting and speak for them? 
Was there so great a public demand for the change, 
such a rush of public sentiment, calling for the 
change, and yet five months ago the boldest dare not 
advocate it before the people? 

Now, Sir, I am not particularly incredulous. My 
temperament rather inclines me to superstition than 
to skepticism, but it would require greater credulity 
than mine to believe that there is such a demand. 
If there be, the secrecy of it is one of the miracles of 
the nineteenth century. It is very difficult to be- 
lieve that, if such is the fact, even my friend from 
Natick, who feels the popular pulse better than most 
of us, should not have felt a single throb last Novem- 
ber, nor a single throb last February, and yet that 
the public is now, with a fevered excitement, calling 
for this great change. I cannot believe it. 

Why, Mr. President, what is the nature of the 
amendment proposed? I have said it was fundamen- 
tal in its character, and to be sure it is. The judicial 
department, as it exists here, is a peculiarity of re- 
publican institutions. They have a judiciary in 
England, but they have it under very different cir- 
cumstances from ours in the United States. The ju- 
diciary of England has no control over the acts of 
parliament. They have no right to pass upon any 
act of parliament and compare it with the Constitu- 
tion. They have no constitution there except as an 
idea, — they have no written or legal constitution. 
But in this country the judiciary passes upon the 
validity of the acts of the legislature. It is a coordi- 



86 RICHARD HENRY DANA, JR. 

nate as well as independent department of the gov- 
ernment. Yet, even in England, where they have 
not the same motive for making it independent, they 
have guarded it in every possible way. 

You know, Mr. President, that up to the time of 
the Revolution, in 1688, the judges were dependent 
upon the crown for their appointment and for their ten- 
ure. The crown removed a judge whenever it pleased, 
and therefore, the judges being dependent upon the 
crown, the people could not have as fair and impar- 
tial a tribunal as the lot of humanity would admit. 
After the Revolution, a clause was introduced into 
the Bill of Rights that the judges should hold their 
oflSces so long as they behaved themselves well — 
not a life-tenure, for it is not the same thing, but so 
long as they behaved themselves well. They were 
liable to be removed by impeachment for misconduct 
official, or by the address of parliament for miscon- 
duct unofficial, or for any other cause. They were 
made responsible in an eminent degree, but they were 
made independent. They, however, went out upon 
what is technically called the "demise of the crown": 
that is, when the king died. This is very much such a 
rule as the gentleman from Natick proposes, that upon 
the demise of the executive, which is once a year, 
one or more judges shall be placed at the mercy of 
the crown. He provides that six judges shall go out 
in ten years, which, allowing for deaths, resignations, 
etc., would make about one a year, so that one judge 
of your supreme court, every year, will be at the 
mercy of the crown. Now in England they thought 
that was wrong. It left still a high degree of inde- 
pendence to the judiciary. As long as the king lived, 
the judges were absolutely independent of him. 



SPEECH ON THE JUDICIARY 87 

The judge had his salary, he had his oiBfiee, and he 
held them entirely independent of the will of the 
king. But, then, each judge would feel that it might 
be that the king would die during his term of office, 
in which case, for one moment his office would be at 
the mercy of the crown. It might not be, and again 
it might be, that the king would die during his term 
of office. To prevent this chance affecting his impar- 
tiality, when George III ascended the throne, at his 
majesty's own suggestion, a law was passed provid- 
ing that the judge's commission should survive the 
demise of the crown, so that in no case could the 
commission of the judge be placed at the mercy of 
the crown. 

Mr. Butler,^ of Lowell (interrupting). I desire 
to ask the gentleman a single question. Was not the 
reason for the adoption of the law in England, to which 
he has just alluded, because upon the death of the 
king some time would elapse in the coronation of his 
successor, and in starting him in his government, in 
which, unless some such provision was made, there 
might be a failure in the administration of justice.^ 

Mr. Dana. No, sir; that was not the reason. The 
reason given by the king was in these words, because 
"the independence of the judges is essential to the 
impartial administration of justice, best for the se- 
curity of the liberties and rights of my subjects, and 
most conducive to the honor of the crown." 

Now, I want the people of Massachusetts to-day 
to be as magnanimous as that. We have the power 
— the people of Massachusetts have the power — to 
^ Benjamin F. Butler. 



88 RICHARD HENRY DANA, JR. 

elect their judges every month or every year, if they 
choose, but I want them to come forward and show 
no less magnanimity than was shown by George III. 
I want them to recognize and act upon the principle 
that the "independence of the judiciary is essential 
to the impartial administration of justice, best for the 
security of the liberties and rights of the citizens, and 
most conducive to the honor of the state." Therefore 
let us surrender, as a people, that prerogative. Let 
us put upon us this self-restraint. There is no 
greater virtue in a free people than the willingness 
to exercise self-restraint. 

When gentlemen tell me they are not afraid to trust 
the people, — and that is the favorite cry here : trust 
the people ! trust the people ! — I must say to them, 
that is not the issue. The question is. Will not the 
people who have got the power impose upon them- 
selves some self-restraint.^ Is not that essential to 
republican government.'^ Cicero once said that the 
Athenian Republic could no more exist without the 
Areopagus than the world could exist without the 
providence of God. Now, sir, a constitutional govern- 
ment can no more exist without a power to assert 
the supremacy of the Constitution than the world 
can exist without the providence of God. 

Sir, what is a Constitution.^ Why are we here, in 
a Convention, to revise one.*^ Why are we taking the 
time and money of the Commonwealth, and our own, 
to make a Constitution? Is it not enough to have 
judges, legislatures, and governors? The legislature 
is elected by the people, and why not trust the peo- 
ple? Why have a Constitution at all? Why not trust 
the people? I put it to those gentlemen, who ask me 
why I will not trust the people to elect our judges. 



SPEECH ON THE JUDICIARY 89 

to tell me why they do not trust the people to make 
our laws? You do not do it. The most radical man 
in this Convention would not trust the people to make 
the laws; but by our own will we impose upon our- 
selves a restraint. In the exercise of judgment, 
prompted by humanity and a sense of justice, we say 
we will make no laws except within the range and 
limit of that Constitution. And, further than that, 
we not only take care to say that we do not intend to 
do it, but we take care to provide against any possi- 
bility of our doing it. We provide a tribunal and give 
it the power of deciding, when we have passed a law, 
whether that law is in accordance with the Constitu- 
tion or not. That is what the people do in making a 
Constitution; and when it is made, when our labors 
go out to the people and are ratified by them, the peo- 
ple take care that the Constitution shall not be changed 
except through a laborious, complex, and difficult 
process. 

The legislature comes together every year, elected 
by the people, and makes laws. The government exe- 
cutes those laws. But notwithstanding all that, the 
poorest man in the Commonwealth — one man alone 
against the whole people of Massachusetts — can set 
those laws at defiance if they are not made in pursu- 
ance of the Constitution. The poorest woman, the 
alien, the infant in its cradle, is protected against the 
will of the majority of the people of Massachusetts. 
The foreigner, whoever he may be, barbarian, Scyth- 
ian, bond or free, may assert and maintain a consti- 
tutional right against the will of the majority of the 
people of Massachusetts. 

Now I ask if it is not the feature that distinguishes 
our republican government, that an individual has 



90 RICHARD HENRY DANA, JR. 

some rights against the powers that be — that the 
minority have some rights against the majority — 
that one man has rights which he may assert against 
the people? That is the great and honored distinc- 
tion, and how are you to preserve it? It is not enough 
to say that it shall be preserved. There must be a 
power to preserve. That power is the judiciary. Every 
act passed by the legislature must undergo the scru- 
tiny of that tribunal, and if it is not in pursuance of 
that higher law of the Constitution, it must be set 
aside. And for that reason, chiefly, I wish to have 
that judiciary made independent. Does not the es- 
sential theory of our government require it? It must 
be independent of the executive, otherwise he will 
execute the laws as he pleases. It must be independ- 
ent of the legislature, otherwise they will make such 
laws as they please. I have a right to demand that 
the governor shall not execute such laws as he pleases, 
but only such as the Constitution allows. I have a 
right to say that the majority of the people, upon 
sudden popular impulse, shall not do just what they 
choose to do, but only what the Constitution allows. 
If the majority of the people of Massachusetts, by 
any sudden caprice or passion, should insist upon 
taking my life or liberty or my property, without 
due process of law, I wish to be protected against it. 
Mr. President: I can protect myself against one 
man, alone. The majority can always protect itself, 
but a single man needs to be protected against the 
multitude. The minority needs protection against 
the majority. And how can that be had, unless you 
establish a tribunal above the mere will of the ma- 
jority? If you constitute the supreme court as that 
tribunal, how can it accomplish that purpose unless 



SPEECH ON THE JUDICIARY 91 

you make it independent, not only of the executive, 
but of the legislature and of the temporary will of 
the majority of the people. 

I have heard it said, and I think it has been said 
by some one upon this floor, that our ancestors, John 
Adams, John Hancock, and those who made the Con- 
stitution of 1780, blindly followed the English prece- 
dent, and adopted an independent judiciary as they 
found it in England, where it was made independent 
to prevent the encroachments of the crown, and that 
they had sought to make it independent here, where 
the same reason does not exist. Now, sir, I undertake 
to say, not upon my own judgment alone, but upon 
the judgment of the soundest men in this republic 
whoever have written or spoken upon this subject, 
that an independent judiciary is more important in a 
republic than it is in a monarchy. Sir, I repeat, with- 
out fear of intelligent contradiction, that an independ- 
ent judiciary is more important in a republic than 
in a monarchy. And why.^ In a monarchy, you may 
always appeal from the sovereign to the people. In 
a monarchy, the power is lodged with the sovereign, 
and you may always appeal from him to the people, 
even if the judiciary is false. But I ask you, in this 
country, where the people are sovereign, to whom is 
a man to appeal from the people.'' Where does 
an appeal lie, this side of Heaven, from the majority 
of the people.^^ Suppose a popular majority carry 
through the legislature a law which infringes upon 
the rights of an individual: I ask any gentleman 
to tell me where that man's appeal lies against the 
will of the popular majority.^ Sir, it lies nowhere 
unless we can have a judiciary independent of the 
changes of a popular majority. We can have no pro- 



92 RICHARD HENRY DANA, JR. 

tection for the Constitution unless we make inde- 
pendent our guardian, the judiciary, which is to say 
whether a law is constitutional or not, and say whe- 
ther the executive executes that law constitutionally 
or not. If we go from hence, not leaving behind us 
an independent judiciary, our labor in this Conven- 
tion is in vain. 

Having spoken of the history of this institution 
in England, I wish to call the attention of the Con- 
vention, one moment, to the history of the institution 
in America. In 1780 our ancestors adopted their 
State Constitution, in which they declared it was 
essential that the judges should hold their offices as 
long as they behaved themselves well. I wish to know 
if John Adams and James Bowdoin and John Han- 
cock, who made the Constitution of 1780, with hal- 
ters about their necks, followed blindly the English 
precedent.'^ I wish to know if they did not feel, as 
keenly as we do to-day, that they were exempt from 
English precedents.'^ They did understand that mat- 
ter fully. They knew that in a republic there was no 
appeal from the sudden action of the sovereign peo- 
ple, unless to a judiciary; whereas in a monarchy 
there is an appeal from the sovereign to the people. 
They knew that we had a Constitution which the 
judiciary must pass upon; whereas in a monarchy 
they have no constitution for any judiciary to pass 
upon. For these two reasons, they saw that it was 
even more important to have an independent judi- 
ciary in a republic than in a monarchy. Such is the 
language of Chief Justice Marshall, of Story, Kent, 
Hamilton, Jay, and Madison. 

When the Constitution of the United States was 
formed, the resolution giving the judges a tenure dur- 



SPEECH ON THE JUDICIARY 93 

ing good behavior passed by an unanimous vote. As 
much as they differed on all other subjects, when they 
came to the question of an independent judiciary and 
the good-behavior tenure, there was an unanimous 
vote of the Convention in its favor. That system has 
continued from that time to the present day. Such, 
too, is the Constitution of New Hampshire, of Con- 
necticut, and of many other states of the Union. In 
Rhode Island, it is substantially the same. I grant 
you that the experiment of an elective judiciary, for 
short terms, is in the course of trial in several states. 
It has not yet been tried, for you cannot try an ex- 
periment of this sort until a whole generation has 
grown up under it. That has not been done. We 
have grown up under an independent judiciary. Our 
noble institutions — the security of life, liberty, and 
property here — have been acquired under an inde- 
pendent judiciary. The experiment of a (impendent 
judiciary has not been tried through one generation, 
or anything like it. It has been tried to some extent 
in New York and Maryland. I think the gentleman 
from Natick (Mr. Wilson) was quite right in saying 
that judicious persons from New York had advised 
us not to try the experiment of an elective judiciary 
in Massachusetts. 

I hold in my hands a letter from an eminent lawyer, 
in which he says: "It is short of the truth to say that 
their united influence (election and short terms) has 
brought our judiciary into decline and decay." I have 
another letter, from one of the most distinguished 
men of the United States, resident in Maryland, who 
says: "It is generally admitted, in this state, I be- 
lieve, that the change in our system has altogether 
disappointed the promises of its authors, and that if 



94 RICHARD HENRY DANA, JR. 

it could now come before the voters of the state, as 
an isolated question, it would be rejected by an im- 
mense majority." 

There are gentlemen in this Convention who have 
been in Maryland within the year past, and who can 
bear testimony, I know, to the correctness of this 
statement. I saw an article in the New York " Even- 
ing Post," the other day, in favor of an elective judici- 
ary, which spoke volumes of warning to us. The writer 
was in favor of the elective judiciary as a matter of 
theory, but at the close of the article he advised the 
people of Massachusetts to be careful not to allow 
the election of judges to come at the same time with 
the election of the other officers, saying that that had 
been a fatal mistake in New York, and that the con- 
sequence had been that the judiciary had fallen into 
the political cauldron. That admission is inestima- 
ble. The result is admitted. The judiciary is in the 
political cauldron. The reasons assigned, I doubt. I 
do not believe that the judiciary has fallen into the 
political cauldron because it happens to be chosen on 
a particular day of the year. I believe it is the in- 
evitable tendency of things, certainly in a state like 
New York, and will be the tendency of things almost 
everywhere. You recollect that, in New York, when 
the elective judiciary first went into operation the 
system worked very well. The first election was made 
irrespective of parties. All parties came forward and 
nominated a mixed ticket. Nearly all the old judges 
were reelected, and everybody was delighted. The 
next year it was not quite so well managed; the next 
year less so; and now the system has fallen helplessly 
into the great cistern — and the well is deep and there 
is nothing to draw with. The reason assigned is not 



SPEECH ON THE JUDICIARY 95 

sufficient, because, for the first two years, although 
elected on tlie same day witli other officers, the judges 
were kept clear of all political connection. The march 
of political parties is irresistible, and office after office 
has fallen before that march. Although I am yet 
young, I can remember the time when the removal 
of postmasters by General Jackson was considered 
an enormity. I can remember when the removal of 
custom-house officers was considered an enormity. 
But the work of removal from office has gone on in- 
creasing, until, at last, every executive officer falls 
before the march of political parties. The spoils be- 
long to the victors. The thirst for blood has come on, 
and is not to be slaked. The leviathan is not so tamed. 
Human nature is not to be thwarted by changing the 
day of the year upon which you are to elect your 
officers. xAll officers that parties can control fall be- 
fore them. How were the trustees of Harvard Col- 
lege to be chosen by the legislature? The first year 
they were chosen irrespective of parties; but the very 
next year the dominant party met in caucus, nomi- 
nated an entire ticket, and carried it through. In New 
York, the " Evening Post " says that judges have fallen 
into the political mill. They beg in New York that 
we shall not elect our judges on the seventh day of 
November, for fear the same thing will happen here. 
I say, make it surer than that. Let us not choose them 
at all, and so we must be safe. 

It may be said by some persons, Why should it not 
fall into the political mill.'^ I think sound reasons can 
be given why it should not. The law must be inde- 
pendent of the changes of the popular will, because 
this same venerable Constitution, some of which, I 
trust, will remain, with or without its rust, says: "In 



96 RICHARD HENRY DANA, JR. 

the government of this Commonwealth the legislative 
department shall never exercise the executive and 
judicial powers, or either of them; the executive shall 
never exercise the legislative and judicial powers, 
or either of them; the judicial shall never exercise the 
legislative and executive powers, or either of them, 
to the end it may he a government of laws and not of 
men." 

I have heard arguments made on this floor upon 
the assumption that this is a government of men, and 
not of laws. But our Constitution says it is a govern- 
ment of laws, and not of men. I have heard gentle- 
men speak here, under these sacred auspices, as though 
whatever a majority chose to do at any time was the 
law of the land. If so, we do not want any Constitu- 
tion. The Constitution is designed for the protection 
of individuals and minorities against majorities, and 
therefore it is that the judiciary must not be made 
dependent upon the popular will. One party and 
another comes up, and then comes the third party, 
that sweeps the board. But these changes must not 
affect the organic law. One reason why they would 
affect the organic law I think to be this — that you 
would inevitably elect party judges. That has been 
done, and it will be done again. There is another dan- 
ger I apprehend far more than this, and which has 
not been often adverted to. Take, for instance, the 
case of the *' Maine Law," as it is familiarly called. 
Suppose the judges of the supreme court were equally 
divided as to the constitutionality of that law. One 
of the three goes out of office at the end of this year, 
and the people of Massachusetts are to pass upon his 
reelection. If he is reelected that law perishes, but 
if another man, of a different opinion, is elected, that 



SPEECH ON THE JUDICIARY 97 

law survives. Earnest men will say, at the polls: "We 
admit that Judge Doe is a very good man, a very 
capable, and a very honest man, but you know that 
he believes that law unconstitutional. You know the 
terrible consequences of intemperance, and how it is 
spreading over this country. You know that it burns 
up human habitations faster than accident or crime 
burn up the habitations that the mechanic rears. 
We can give you a judge just as honest, just as ca- 
pable, just as learned, whose opinions upon that sub- 
ject we know to be correct. Now every vote for Judge 
Doe is a vote for ruin, though he is a good man; and 
every vote for Judge Roe is a vote for temperance 
and happiness and salvation." How is that argu- 
ment to be resisted.^ It will not be resisted. In times 
of great popular excitement for a moral cause, or any 
other cause, it will not be resisted. Take the Fugitive 
Slave Law. Suppose the court equally divided upon 
that subject. A new judge is to be elected. Fugitive 
slave cases will come up before that court for a hear- 
ing. I wish to know if the people will not wish to 
ascertain something about the antecedents of their 
judges upon that subject. I wish to know whether 
they will vote in the dark. I tell you nay. The votes 
will be given for principle, and not for men. Yes, 
says my friend opposite (Mr. Burlingame), as I see 
by the nod of his head, he is ready for it now. That 
is young America. "Principles, and not men," will 
be the cry. Furthermore, the choice of the people 
will be considered as an expression of the law. If a 
majority of the people should vote for that judge, 
then it would be said that the people had spoken, 
and that they had instructed the court, and that the 
court must follow the voice of the people. I do not 



98 RICHARD HENRY DANA, JR. 

know but that the argument which I consider to be 
conclusive against the change will operate on some 
minds in its favor; but let me beg every gentleman, 
before he allows himself to be influenced in that di- 
rection, to consider that he is not put here by his 
Maker to carry out his own will upon the earth. The 
people of Massachusetts were not put here to carry 
out their will upon the earth. We were put here to 
do justice, to protect the weak, to resist the mighty, 
and to secure to each his right. The democratic doc- 
trine that I know anything about, and that I respect, 
though I have not enrolled myself under that name, 
is not that which says that the people may do what 
they can and will, but that which declares every man 
equal before the law, and that he should have his 
right. I ask professed Democrats here, which of these 
two is the democratic doctrine: that every man may 
do his will, and that the majority may do whatever 
they can and will, or that every man, even the hum- 
blest, has his rights, and that under the Constitution 
all men, without distinction of caste, condition, pro- 
perty, or education, are equal, and that they all shall 
have their due before the law. We can now protect 
the rights of every man by saying to him, you have 
a tribunal, and if the multitude pursues you, you can 
flee to the horns of the altar and lay hold thereon. 
Although the avenger of blood may pursue you, and 
the multitude follow hard after you, lay hold for your 
life on the horns of the altar. We will give you a tri- 
bunal which shall protect you until the danger be 
overpast. That I understand to be the genius of our 
Constitution, and therefore it is, T say, that the ju- 
dicial office should not be blown about by every wind 
of doctrine. Therefore it is that the people, by a 



SPEECH ON THE JUDICIARY 99 

transient vote of the majority, should not settle the 
law. They may make their law through the legisla- 
ture, but, with the Constitution in my hand, I can 
say to the poorest and humblest man, — the poor 
trembling African, to the foreigner, who has first 
landed on our shores, and who does not know his way 
through the streets of the city, and does not know 
the elements of our constitutional law, — I can say 
to him: "You have come to a country where no man 
can oppress you, where the government, where the 
legislature, and where the people itself cannot op- 
press you. If a sudden movement of popular opinion 
should turn against you, and you should become 
odious, or stand in the way of their will or their in- 
terests, you may come to my humble office, and, with 
a piece of paper no bigger than a man's hand, I can 
set at defiance a majority of thousands of the people 
of Massachusetts. I can point to the Constitution. 
I can go to the tribunal and assert your rights." 
"Aye," says my client, "you may, but how do I 
know that that tribunal will assert it.^^" My answer 
is: "I admit, a tribunal would be of no use, unless 
it has power. It has the arm of the executive, it has 
the whole arm of the State to enforce its decrees." 
"But," says my poor client, "that is not enough. 
How do I know they will sustain that Constitution 
against a popular majority.^ How do I know they will 
sustain it against the legislature .^^ Your legislature 
has passed a law abridging my liberty and taking 
away my property, and the people are bent upon exe- 
cuting it, and at once. How do I know that your 
tribunal will stand against it.^" I can give but one 
answer. I can say: "The men who formed this Con- 
stitution — wise, noble men — said it was essential 



100 RICHARD HENRY DANA, JR. 

to the preservation of the life and liberty of each man, 
that he should be tried by a tribunal as impartial and 
independent, as the lot of humanity will permit. 
Therefore they say, *The judges should hold their of- 
fices, so long as they behave themselves well.'" I say 
to him, that I admit it is said, that a man who con- 
trols the subsistence of a man may control his will; 
and we have provided that the salaries of these judges 
cannot be touched while they are in office. I admit 
that whoever can turn a man out of his office may 
control his will, — not must control it, but may. 
Now, I say to the poor trembling suitor: "These men, 
whom you see before you, hold their offices so long 
as they behave themselves well; they cannot be re- 
moved, nor can they in any way be affected in their 
persons, property, hopes or fears, for their decision 
in your case.'* 

But, if I had to say to him, here are these five judges, 
I hope they will do you justice, I believe they will, 
and I pray that they may; but I know, that two of 
them are candidates for reelection to-morrow, and 
party excitement runs high, and the feeling is very 
strong in the community; or if I had to say, that the 
Convention which had lately been in session had 
provided that these judges should depend for their 
reappointment upon the executive, and he should ask 
me, how is the governor disposed .^^ I must tell him, 
that the governor agrees in his views with the people. 
The bill has been passed by the legislature and the 
governor has signed it, and he is to appoint one judge 
to-morrow, and the next day he is to recommission 
another or not, just as he may see fit. Now, I could 
not say to that man that he had as independent a 
tribunal as the lot of humanity would permit. I want 



SPEECH ON THE JUDICIARY 101 

to say to him that all the law can do to make the 
tribunal independent and impartial has been done. 
I do not say that it will then be impartial. Our judges, 
now, may not be impartial. They may be governed 
by social feelings, and to some extent they are. They 
may be governed by the influence of a clique to which 
they belong. That may be true; and so it will be under 
any system. That is human nature. Our Constitu- 
tion has not said that every man shall be tried by an 
angelic tribunal; nor that every man shall be tried by 
a superhuman tribunal; but by a human tribunal, 
as impartial as the lot of humanity will permit. I 
cannot warrant judges against personal, social, and 
party feelings; but for that very reason, I do not 
want to add another and a certain operation of a 
power over his subsistence or his oflSce. 

And when this man has stood before our tribunal 
without fear, as far as a man can be without fear be- 
fore his fellow men, and when he has gone away with 
justice done to him against the popular will; when 
that tribunal, standing higher than anything this 
side heaven, making the most noble exhibition that 
humanity can make, — protecting the right of a sin- 
gle man against power, — when that has been done, 
I turn to my grateful client and say: "Now, I wish 
you to acknowledge that the old Commonwealth of 
Massachusetts deserves some gratitude for a self- 
imposed restraint. When the people of Massachusetts 
might have made a law which would have walked 
right over you; when the people of Massachusetts 
might have provided that there should be no tribunal 
and no Constitution, and nothing but the action of 
the public will; when they might have mocked you 
with a tribunal dependent upon the will of that very 



102 RICHARD HENRY DANA, JR. 

majority against which you are to be protected; when 
they might have mocked you with a tribunal depend- 
ent upon that very executive against whose enforce- 
ment you are to be protected, they have restrained 
themselves, and said, — In order that justice may he 
done to the loeakest — in order that in any moment of 
excitement, in any hour of frenzy or mistake, we may 
not touch the hair of the head of the humblest man, ive 
will give him a tribunal which shall be independent of 
the fluctuations of our opinions or passioris. 

Having shown, gentlemen, why we should have an 
independent judiciary, let them point to me one sin- 
gle reason why we should make the change. There 
is no popular demand for it, and there has been not 
one single case of complaint. We have the power of 
impeachment. How many judges have been im- 
peached in this State .'^ Not one, in my day. Has a 
judge been removed by the legislature .^^ But one, 
and none in my day. What does that indicate.^ It 
indicates that it has not been found necessary. And 
what does that indication prove .^ It proves that we 
have had a tribunal as impartial as the lot of human 
ity will permit. Our judges, let gentlemen bear in 
mind, are not irresponsible. They may be impeached; 
they may be removed by a vote of the legislature. 
Do gentlemen recollect that, at this moment, it re- 
quires no more power to remove a judge of the su- 
preme court, than it does to change a man's name; 
that, on a vote of the two branches of the legislature, 
the governor can remove a judge of the supreme 
court; that a conviction in one tribunal, after impeach- 
ment by another, may remove him from all office 
forever .f^ What more responsibility do gentlemen 
want.f^ It is not a question of responsibility. It is a 



SPEECH ON THE JUDICIARY 103 

question of dependence. Now I admit, freely, that all 
these gentlemen who hold that there ought to be no 
constitution practically; that there ought to be no 
tribunal independent of the changes of the popular 
will, — they ought to support an elective judiciary, 
and the sooner the better, and make them elective 
not once in ten years, but every year. They cannot 
stop short of that. 

Tyranny is simple. It is as simple as the rule of 
three. But these complex governments in which lib- 
erty exists are not to be made or changed easily. They 
grow. Institutions, as was said by the gentleman from 
Marshfield (Mr. Sumner), grow out of men, and are 
not imposed upon men. Now, this institution has 
been hundreds of years in growing. We have lived 
under it to this day and without any complaint. I 
must take the liberty to say that if this Convention 
were to destroy this system with no complaint made 
against it, and should rush out upon the road of ex- 
periment, possessed by a mere theory, when there is 
no abuse to be remedied, it will be the rashest act 
that a sober community ever committed. 

I wish to say to this Convention that the judiciary 
is the feeblest department of the government, and 
needs protection. It is the feeblest department of the 
government. So say Hamilton, and Jay, and Madi- 
son; so says Marshall, so says Story, so say Kent and 
Rawle and all the writers on the Constitution. And 
is not that perfectly plain .^^ What is the judiciary .^^ 
It passes upon private questions between man and 
man. It interprets the laws. The powerful depart- 
ment of the government is that which makes the laws. 
The legislature holds the purse; the legislature creates 
offices; the legislature establishes the compensation; 



104 RICHARD HENRY DANA, JR. 

and in the legislature, distinction, conspicuity, and 
political power are to be acquired. But the judiciary 
creates no offices; the judiciary fixes no compensation; 
the judiciary makes no laws. It has merely a voice 
and a head; it has no arm; it has no purse; it has no 
will. The legislature has a will, and the executive has 
an arm; but the judiciary has neither power nor will; 
it can only pronounce. When it has pronounced, it 
can only throw itself upon the executive to execute 
its decrees. 

The judiciary is not the popular branch. It does 
its business in quiet and stillness, and with but little 
conspicuity. The legislature is the place where all 
men go who are bound on a course of popular prefer- 
ment, and who wish to stand high in the popular af- 
fections. The judiciary has no strength except in the 
public confidence and in its own integrity. 

Many persons have been prejudiced against the pre- 
sent system of the judiciary because of events which 
have occurred in our own State within the last three 
years. Many have sat uneasily under the existing 
system, for they have thought that the judgments 
of the court have been construed against what they 
considered — and I agree with them — the true in- 
terpretation of the Constitution on the subject of 
fugitive slaves. 

Now, I take it upon myself to say that I suffered 
as much in my feelings as any man under those de- 
cisions of the Supreme Court of Massachusetts, and 
of the Circuit Court of the United States. I thought 
them then, and I think them now, wrong. I say this 
with diffidence, after decisions in such places. But 
I can truly say that in my greatest distress there was 
one drop of comfort left me. I knew that those de- 



SPEECH ON THE JUDICIARY 105 

cisions came from men who were not making them 
for their judicial lives. I knew that they came from 
men who were not making them because their offices 
or salaries depended upon their making them. 

I felt that we had a tribunal, not entirely impartial, 
— I cannot say that, because it was a human tribu- 
nal, — but a tribunal for which the law had done all 
it could do to make it impartial. I knew, and I won- 
der other gentlemen do not remember, that had those 
judges been elected, we should have stood no better 
chance than we did then; for the popular majority 
was against us. Had these judges known they would 
be obliged to go through a popular election the next 
week, I wish to know if we should have argued our 
causes with any more confidence on that account. 
No, Sir; the confidence felt in going before these judges 
was this; and it was of unspeakable comfort to me, 
that I had a tribunal as independent as the law could 
make it. When this alarm, this fear — and fear is al- 
ways cruel and always unjust — was spreading over 
the country; when political parties and great leaders 
thought it necessary to take a certain position; when 
men thought that the Union and the shoe trade, and 
I do not know how many other things, were in peril, 
and certain things must be done, I felt, Mr. President, 
the comfort of knowing that these judges held their 
offices and their salary, utterly irrespective of these 
popular determinations. Gentlemen are fond of talk- 
ing as if the people were always in the right. Now 
I have not lived long, but it has been my misfortune 
not always to have thought them in the right; and I 
submit to gentlemen who have sustained the demo- 
cratic doctrine in this State through these long years 
of defeat, up to this day, whether they have always 



106 RICHARD HENRY DANA, JR. 

thought the people right. I ask the Whig party, who 
have gallantly maintained their position before the na- 
tion, — beaten three times out of four, — whether they 
have thought the people always right. I submit to 
my own associates whether they have thought the 
people of the nation, or of this State, always right 
on the great question of resistance to the spread of 
slavery and the slave power. No, Sir; this always 
has been, and always will be the case, that among all 
the changes of the government, and changes of popu- 
lar opinion, the public is sometimes unjust. No man 
has considered his own nature well, without feeling 
that he has something within him to satisfy him that 
he ought not to be trusted with arbitrary power. 

Is there one man here who in a moment of resent- 
ment, in a moment of passion, in a moment of sup- 
posed insult, has not thanked God that he was not 
possessed of arbitrary power .^ I suppose every man 
feels the necessity of self-restraint; and if he cannot 
restrain himself, he thanks God for putting some- 
body over him who can restrain him. So it is with 
the good people of Massachusetts. They know that 
they cannot trust themselves with arbitrary power, 
and, therefore, they make a Constitution which will 
restrain them. They know that they can neither trust 
the legislature nor the executive with arbitrary power, 
and therefore they make a tribunal to decide whether 
they have acted in accordance with their general will, 
and done nothing which it was not their general will 
should be done. So it is with an individual. He may 
have a general will to serve God, and a special, tem- 
porary will to do wrong when a temptation presents 
itself; but his desire is that his special and temporary 
will shall be overruled and restrained, so that his 



SPEECH ON THE JUDICIARY 107 

conduct may conform to his general will. Now the 
general will of the whole people is expressed in the 
Constitution; but there may be some act of the legis- 
lature, some sudden freak of the executive, contrary 
to that general will. We, therefore, wish to get such 
a faithful witness to this our general will, as shall 
protect every man against the consequences of what 
we or our servants may do, in a moment of rash- 
ness. 

I have trespassed very much on the patience of 
this Convention, and I will now merely say a few 
words in relation to this matter of reappointment. 
I have said all that I propose to say now, upon the 
subject of an elective judiciary, for I do not conceive 
that on that point we are in any very serious peril 
in this Convention. Gentlemen may be disposed to 
say, if we cannot make judges elective, we will make 
them, in some manner, dependent upon the executive 
for their term. I wish to ask those gentlemen who 
are in favor of an elective judiciary, what they have 
to say to this proposition of the gentleman from Na- 
tick. What kind of a proposition is it.f^ In how many 
states of the Union has the experiment been tried, 
of having their judges hold office for ten or seven 
years, and then be reappointable by the executive.^ 
There may be some such, but I do not know of any 
myself. Upon what principle does it rest.^ I can very 
well understand upon what principle an elective ju- 
diciary rests, but I cannot so easily understand upon 
what principle you base the doctrine that the judges 
are to be made dependent upon the executive. Why, 
Sir, I thought that gentlemen were afraid that the 
executive had too much power and patronage; and 
we have, therefore, been stripping the executive of 



108 RICHARD HENRY DANA, JR. 

the power of appointment of numerous minor offices. 
Yet we are now asked to clothe him with the power, 
every year, to appoint a judge of the Supreme Court, 
and to reappoint him at his pleasure. I do not un- 
derstand how this is carrying out the principle, that 
*' because the power of the executive has increased, 
and is increasing, it ought, therefore, to be dimin- 
ished." I ask those gentlemen who stood by the Re- 
port and Address of the Free Soil Committee, only 
nine months ago, — nay, not so much, not nine, less 
than five months ago, — which declares that the 
power and patronage of the executive must be di- 
minished, with what face they can come here and 
advocate the clothing of the executive with this tran- 
scendent power, v/hich I do not know that a state in 
the Union has clothed him with. The executive desig- 
nates and nominates the judge now, but after he is 
so nominated and appointed, he is entirely out of its 
control. I say it is of little consequence who appoints, 
if the appointment is made by an intelligent body, 
provided the judges hold by an independent tenure. 
I cannot see any fatal objection to the judges being 
elected by the people in the first instance, if they are 
to be independent of the changes in the public will, 
and responsible only for misbehavior, although I think 
a judge is the better for not having been through a 
political campaign, and not being connected with its 
issues. I assure every gentleman here, that I will go 
to the fullest extent to make a judge responsible to 
the people, if any charge of misconduct can be brought 
against him. I will consent to anything that is judi- 
cious, if your power of impeachment and address 
does not make them suflSciently responsible. It is the 
fact of a judge's looking to a reappointment, that 



SPEECH ON THE JUDICIARY 109 

makes the danger. I do not see that the danger is very 
much affected by the question whether they look to 
the executive who sits in that chamber, or look to a 
party caucus that meets somewhere in School Street, 
or State Street, for their reappointment. Whether, 
as the fatal day approaches, his friends besiege the 
doors of the ante-room for a week or a month before- 
hand, while he is expected to sit all unconscious, on 
his bench, "as impartial as the lot of humanity ad- 
mits," or whether they take by the buttonhole the 
members of the State Central Committees. I cannot 
see that there is much to choose between them. Gen- 
tlemen who suppose that our judges would stand just 
as they have stood, are mistaken, in my judgment; 
for the chance of reappointment, or the chance of re- 
election, will depend very much on their decisions. 

The people and the political parties will be gov- 
erned in that matter by these considerations. The 
executive will be elected by a party. That party has 
principles, — I do not mean the low purposes of 
party, but the great principles of party, — and those 
men who have got principles are the dangerous men 
of whom I am afraid. I am not afraid of the rogues; 
I am not afraid of the camp-followers, who hang about 
parties; but it is the party that has great principles 
to carry out, that gets excited and loses its balance, 
and when the moment of election comes, and the 
whole community is stirred up, then I am afraid that 
the calm and quiet retreat of the judiciary will be 
invaded. 

I see that my friend from Fall River (Dr. Hooper) 
is making out a recipe against me; but I want him to 
understand that I am only afraid of party principle 
because it will operate in giving direction to the laws 



110 RICHARD HENRY DANA, JR. 

of the land, whereas the laws of the land should stand 
far above all such influences as those of party prin- 
ciple. The law should rest upon fundamental prin- 
ciples, should be given out wholly irrespective of the 
divisions of party. The law is a science. The judges 
are professors of a science. Their own will must not 
intervene. The will of popular majorities, unless in 
the form of laws constitutionally made, should not 
intervene. 

I do beseech gentlemen not to be deluded by the 
arguments, that if you cannot get an elective judi- 
ciary, you must take all that you can get; because, 
in this case, you have got to take a very different 
sort of thing from what you wish. What gain is it to 
popular power, or the popular principle, that the 
judge holds for ten years, with a transaction at the 
end of that time between himself and the governor, 
instead of holding independently during good behav- 
ior, averaging thirteen years .^ You increase the execu- 
tive power, and create a feeling of dependence and a 
risk of partiality, for no adequate compensation. The 
tables show us that the judges' tenures average only 
thirteen years, allowing for deaths and resignations. 
The governor would have, in doubtful cases, the control 
of a majority of the Supreme Court every year. He will 
appoint a judge every year, and that may turn the 
majority in close cases. So you will have a supreme 
court with the majority, in the balanced cases, in the 
hands of the governor. If there is a new judge to be 
made, he must find him; if there is a judge to be re- 
appointed, he has to reappoint him or not, at his 
option. In ordinary cases, I doubt not that judges 
would be appointed according to their behavior; but, 
in the highest tribunals, judges would be appointed. 



SPEECH ON THE JUDICIARY 111 

eventually, according to their opinions. They must 
have their platforms, and they will have their plat- 
forms, and we shall have the mortifying exhibition 
of our judges, or their friends, at the door of that execu- 
tive chamber, petitioning for reappointments. Now, 
Sir, I do not want to make them dependent upon the 
changes of popular elections, either upon one man or 
a dozen men, I do not think it makes a great deal 
of difference which. This principle, — I call it a prin- 
ciple, out of respect to my friend from Natick, — 
this experiment, which, I believe, he is almost the 
first if not the very first to embark in, is putting the 
judicial department substantially under the control 
of the executive department. 

Mr. Wilson. I will inform the gentleman that he 
will find the same thing in Maine and in several other 
states of this Union. 

Mr. Dana. "Several states." That is rather in- 
definite. There are thirty-one states in the Union, 
and three makes several ! and I am told there are but 
three out of thirty-one. It is founded upon a viola- 
tion of principle. Our Constitution says that the 
departments shall be distinct — no one department 
"shall exercise the power of another." Our ancestors 
never even dreamed that we would give the head of one 
department power over another. They never supposed 
that in the course of affairs it would ever happen that 
one department would be bound, hand and foot, and 
delivered over to another. They thought it quite 
enough to provide that one department should not 
exercise the powers of any other. "The executive 
shall never exercise legislative or judicial powers, or 
either of them." But they can do it indirectly, if your 
judges are to be dependent upon the executive for 



112 RICHARD HENRY DANA, JR. 

reappointment. I maintain, therefore, that if you 
adopt the experiment of the gentleman from Natick, 
you will violate the great substantial principle of this 
government, in relation to these three departments. 
If you make the judges dependent for their reappoint- 
ment upon the executive, how can you tell where 
that dependence begins or where it will end.'^ Gen- 
tlemen may say that they will not be influenced; but 
you cannot tell how far they will be influenced, and 
the great difficulty is, that the judges themselves 
cannot always tell whether they are influenced or not. 
I have no doubt that in such circumstances most 
judges will pronounce decisions which they believe 
to be impartial, but they do not know themselves. 
It is tempting Providence. This self-deception is 
one of the most subtle and most easily besetting sins 
incident to humanity. If you make the judges de- 
pendent, you will not discover, and they will not 
discover, what an influence this has upon their in- 
most thoughts and feelings. If the office were not 
a desirable one the judge would not have accepted 
it. Will not this feeling increase and strengthen with 
the time in which he should hold the office? I submit 
to every gentleman upon this floor, if, after a man 
has held an office for ten years, a reappointment is 
not eminently desirable. Suppose a man takes an 
appointment at the age of fifty, and holds it until the 
age of sixty, and then goes back to his profession. 
You put the salaries so low that a man cannot lay up 
anything. He goes back to his profession, and he 
finds himself incapacitated, as it were. His hand is 
out. Competitors, younger and more energetic, have 
entered the field and have gathered the business into 
their garners. His old clients are gone. Imagine such 



SPEECH ON THE JUDICIARY 113 

a man going back into his profession, his head whit- 
ened by the snows of threescore winters, competing 
at the bar with the young and middle-aged, with the 
advantage of ten years' daily practice on their side. 
This judicial office is a peculiar one. You cannot get 
a man to take it as he would an executive or legis- 
lative office. The judge must study a long time to 
qualify himself for its duties; and if he is thrown out, 
he must begin the world anew on a little chamber 
practice, for he cannot ordinarily resume the active 
duties of the profession. Thus, Sir, his office is a de- 
sirable one, and he knows it, and his family know it, 
and his friends know it. Suppose he looks to the gov- 
ernor for reappointment. As the day approaches, 
his mind naturally looks forward to that time and 
dwells upon it. As it comes nearer and nearer, it en- 
larges until it fills the whole horizon. This idea is 
something which cannot be set at naught. It will 
have more influence upon some than upon others, 
but you are bound to remove all such temptations 
from their path. There is nothing else in the whole 
range of subjects which we have discussed, whether 
the plurality system or the majority system, the execu- 
tive council, the town system of representation, or 
the district system, upon which you may not experi- 
ment more safely than upon this. Do not experiment 
upon the impartiality of your judges. Do not ex- 
periment to see how much temptation they can with- 
stand, with their office and salary on the one hand 
and conscience on the other! 

I ask if anybody has petitioned us that this experi- 
ment might be tried .^^ Has anybody complained of 
anything wrong.^^ Ob! save your judges from this 
humiliation — save them from temptation ! Save 



114 RICHARD HENRY DANA, JR. 

from distressing doubts and suspicions the men who 
go to them for justice! I cannot conceive of a distress 
more cruel than that of a cHent whose Hfe and all is 
at stake, with a doubt resting upon his mind as to the 
impartiality of the tribunal. That doubt of the impar- 
tiality of the final tribunal will be a doubt that will 
try all the institutions of this country. Save the client 
from that doubt! Banish from his mind the constant 
impression, as he looks over the faces of those five 
judges: "You, Sir, next year, are to be reappointed 
by such a party," and "you. Sir, this year, must be 
reappointed by such a party," and "I am standing 
upon the very platform which that party has de- 
nounced — I hold the opinions which that party is 
sworn to overthrow!" The first thing that I should 
wish is, that all the citizens should feel perfectly se- 
cure from that doubt; and in the day of our great 
extremity, if it should ever come, let us be able to 
thank the old Commonwealth that she has saved us 
from that distress. You have onl}^ to stand where you 
are, and you secure it. Why not do it.f^ Why venture on 
this experiment.^ W^ho has required it at your hands? 
Stand where you all stood in October, 1852, or 
where the people thought you stood. Stand where 
you stood in February, 1853, and where the people 
believed you stood, when they went to the polls, and 
sent you here. Stand where all three of the political 
parties stood on the day when the people sent us here. 
Do not exhibit the spectacle of making this funda- 
mental change, with no call from the people to have 
it made; with no notice to the people that it was to 
be attempted, and with no chance for the people to 
elect men with reference to its being attempted. 
Stand by it because we have had an independent and 



SPEECH ON THE JUDICIARY 115 

honorable judiciary under it. Stand by it, because 
no experiment has ever been tried under the other; 
for no generation has grown up under an elective 
judiciary. And I say to the gentleman from Natick 
(Mr. Wilson), and to the gentleman from Fall River 
(Mr. Hooper), by all means, let it stand until they 
have agreed what they will substitute in the place of 
it. I say, make no reform until your institutions need 
reform, and imtil you have agreed what reform you 
will make. Do not exhibit to the world a spectacle, 
as we shall in Massachusetts, of a convention called 
to make changes which the popular voice had indi- 
cated, taking in hand to make substantial changes 
of which the people had given no intimation ; making 
change for the sake of change; without any admitted 
evil to be remedied, and upon a theory about which 
themselves cannot agree. Sir, the gentleman from 
Fall River will see the force of the illustration, when 
I tell him it is bad enough to see two surgeons sitting 
by the side of a sick man, quarreling between them- 
selves what they will do with him; but to have them 
seize hold of a man in health, and bind him hand and 
foot, to try experiments upon him, and not to be able 
to agree what they shall do to him! that is cruelty as 
well as folly. And yet. Sir, that is precisely the state 
of things here. 

A Voice. That's a fact. 

Let gentlemen lay this to heart. They are not in 
a position to try this experiment here. Nobody has 
discussed this project; yet without discussion, gen- 
tlemen would force it upon the people. Gentlemen 
are uneasy. We are coming towards the close of the 
session, and gentlemen say that we must not delay 
an hour. But I say to the friends of the Convention, 



116 RICHARD HENRY DANA, JR. 

if they wish to save time, do not save it by rash and 
rapid work. Save it by letting alone what you have 
not time to do well. If the people want the change, 
it can be afterwards made through the legislature. 
But my word for it. Sir, the people do not want it. I 
so judge by the symptoms. If there be no symptoms 
of a desire, I judge that there is no desire. 

Sir, we hold our seats here under an implied obli- 
gation not to touch the judiciary; not merely, as the 
gentleman from Natick says, not to make it elective, 
but not to change the tenure at all. Therefore, I say 
again, stand by the Constitution until you see a diflS- 
culty to remedy, and seeing the difficulty, stand by 
the Constitution still, until you can agree as to what 
that remedy should be. Stand by it until the people 
have called for the change; and when they have called 
for it, and the evil is apparent, and the remedy agreed 
upon, I promise to give you my humble aid, but not 
till then. 



V 
USURY LAWS 

February 14, 1867 

[During Mr. Dana's first year in the Massachusetts Legisla- 
ture, 1867, the repeal of the usury laws of the state became a 
matter of discussion. 

"That this law should be stricken from the statute book had 
always been tacitly accepted as something hardly within the 
range of reasonable expectation. It had been handed down from 
the earhest settlement, was of Biblical origin, and was ordinarily 
regarded as one of the pillars of civilized society; for without 
some law fixing a legal rate of interest, it was popularly supposed 
the borrower would be completely at the control of the lender. 
When this question came up, Mr. Dana contributed to the de- 
bate one of the most admirable presentations of the argument 
against usury laws which has ever been made. Its effect at the 
time of its delivery was great, the repealing measure passing the 
House of Representatives, to the surprise of every one outside 
the State House, by a majority of 43 in a total vote of 197. When 
published, the fame of this speech went abroad, and it made a 
deep impression beyond the limits of Massachusetts. It has since 
been printed repeatedly, and is still one of the documents in use 
wherever the question of the repeal of usury laws is under dis- 
cussion." ^ 

There was no organization assisting Mr. Dana at the time. 
It was the case of the power of one man's single speech. Apart 
from any need of enlightenment in this Commonwealth, where 
there is practically no danger of reestablishing usury laws, the 
speech is still well worth reading. It holds the attention with as 
much interest as if the repeal were the question of the hour. 
^ Biography of R. H. Dana, Jr., vol. ii, p. 337. 



118 RICHARD HENRY DANA, JR. 

There is a fascination about it, and many of the principles es- 
tabHshed and illustrated are fundamental ones in political econ- 
omy which all should know. 

That Mr. Dana's arguments and predictions are amply con- 
firmed by forty-three years of experience is well known in gen- 
eral. Of late years, it has been again and again noted that in 
Boston, where there is no usury law, rates of interest during a 
panic were below those of New York, where there is a legal 
limit. Nor has the New York seven per cent legal limit pre- 
vented the exaction and payment of interest at the rate of ten, 
twelve, twenty-five per cent a year and even more.] 

This subject, Mr. Speaker, is one of first-class 
importance. Usury laws had their origin in the be- 
ginnings of history. They have been dealt with by 
moralists, theologians, philosophers, statesmen, and 
economists, — by church councils, synods, parlia- 
ments, royal edicts, and legislatures, from the Law 
of Moses to the hour of the present debate. They had 
a noble origin — an origin in kind hearts and religious 
purposes. They had a common origin with sump- 
tuary laws, and laws regulating the prices of the 
necessaries of life. One cannot but respect the mo- 
tives of those who, in ancient times, desired, by strong 
laws and heavy penalties, to repress luxuriousness of 
living, and to protect the poor borrower against the 
rich and potent lender, and the poor consumer of 
the necessaries of life against the wealthy producer. 

Sumptuary laws are no strangers to this country. 
They were enforced in the early days of New England; 
but who would think of calling for them, or of per- 
mitting them, now? 

How has it been with laws regulating the prices 
of the necessaries of life.^ 

It seemed to philanthropic men that a poor con- 



USURY LAWS 119 

sumer should not be obliged to pay a great price to 
the rich producer. All are charged to give to the poor; 
and the rich producer was not to be allowed to com- 
pel the poor consumer to pay a high price for the 
necessaries of life — for bread. 

If we go back, I do not know how many centuries, 
we shall find philanthropic men urging a system of 
laws which should compel the producer to sell at mod- 
erate rates. Nothing could be more humane in inten- 
tion, nothing more in accordance with the spirit of 
Christianity. But when they came to put the system 
into operation, some difficulties showed themselves. 
For instance, suppose what I call the natural price of 
a bushel of wheat, that is, the price which, without 
legislative interference, would be the ruling rate when 
the producer and consumer were brought together, 
was ten shillings. But ten shillings is a high price for 
a poor consumer to pay. The philanthropic legisla- 
ture says he shall have it at nine shillings, and the 
rich producer shall sell it at nine shillings. In those 
days the laws were enforced — and no law should stand 
that cannot be enforced. Gentlemen can see that if 
ten shillings was the proper price, and the producer 
was compelled to sell at nine, he would not go on pro- 
ducing wheat, but would turn his capital and indus- 
try in another direction. So the consequence would 
be that the next year the price of wheat would rise, 
and the poor consumer be in a worse condition. 

Something must be done to increase the supply. 
The first attempt was to compel the agriculturist by 
penalties to produce and sell. Immediately it became 
apparent to all that there was no reason why he 
should be forced to raise and sell at a losing price, 
when nobody else was obliged to work in that way. 



120 RICHARD HENRY DANA, JR. 

Then the friends of the poor resorted to a bounty. 
That seemed reasonable. The natural value is ten 
shillings, and you wish to sell to the poor at nine; 
and so you will pay the producer a bounty of one 
shilling per bushel from the public treasury, that he 
may sell at nine. Why is not that proper? Two dif- 
ficulties immediately occur. The first is that you 
cannot make one law for selling to the rich, and an- 
other for selling to the poor. You cannot say to the 
seller, if a rich man comes to you to buy, charge him 
ten shillings, and if a poor man comes, sell for nine; 
for, who is rich, and who is poor.^ You cannot make 
a law to benefit the poor alone, so that the rich will 
not also get the benefit of it in the market, as well as 
the poor. 

Another objection to the bounty was that, as it 
must be raised by taxation, every man was taxed for 
a shilling a bushel, that every man might buy a shil- 
ling a bushel cheaper. Nay, it was worse than that; 
for it is known that, what with the expenses of col- 
lection and the notorious leakages in all revenues, 
not more than two thirds of a tax collected reaches 
its point of destination. So that one shilling and six- 
pence was levied to save a shilling. 

That was the end of the bounty laws, and of all 
attempts to regulate the price of the necessaries of 
life. Yet what could be more commendable than an 
attempt to reduce the price of the necessaries of life.^ 
I suppose there is no sane man anywhere now, who 
would propose to regulate that price by legislation. 
You would say it is absurd to do so. Mr. Speaker, 
excuse me, you cannot say it is absurd. It was the 
faith and belief of centuries; it was the practice of 
generations; and wise men, men as wise in their day 



USURY LAWS 121 

as we in ours, only they had not the same experience 
as we, — yet as wise, and certainly as benevolent, — 
advocated this system. The arguments in support 
of the system were as urgent and as sincere as those 
which have been used on this floor against the repeal 
of the usury laws. It was experience, and the prin- 
ciples deduced from experience alone, which taught 
men that they could not legislate a cheap market. 
For there is nothing harder to get out of a man's 
mind, when he is conscious that he has undertaken 
a course of conduct from pure and philanthropic mo- 
tives, than his first convictions. It is easier for a 
camel to go through the eye of a needle, than for a 
good man to surrender, to the teachings of experi- 
ence, a darling system for which he knows he has 
made sacrifices, and with which he has identified all 
he has and is. 

The next system, in the same category, from which 
we may draw instruction, is the colonial system. It 
was this: The mother countries — Great Britain, 
France, and Spain — established laws requiring their 
respective colonies to deal solely with them. The 
consequence was that we could not send to Cuba and 
get a pound of sugar, but that pound of sugar must 
go to England and pay duties and pass through the 
merchant's hands there, and then come here and pass 
through the merchant's hands, so that we had to pay 
a great sum for a pound of sugar. Massachusetts 
could not sell or buy except with the mother country. 
As an equivalent, it was agreed that the mother 
country would not buy the products of the colony 
except from the colonies themselves. It was thought 
that all this circuity of trade and reduplication of 
business was a creation of wealth. By and by it came 



122 RICHARD HENRY DANA, JR. 

to be discovered that both countries were paying a 
heavy taxation, and both obHged to buy in a dear 
market and sell in a cheap, that each might save a 
little out of a forced interchange. This system may 
seem now absurd; but you know we had to fight our 
War of the Revolution partly because England had 
a false notion of political economy as to her colonies. 
Spain has not given up her system yet. Our longer 
experience has shown the mistake of the colonial 
system, but generations, wise and prudent in other 
things, adhered to it and fought for it. 

Consider the system of protection, — protection 
of American manufactures. I can remember when 
men advocated protection for the sake of protection. 
Public policy may still lead us to levy duties on im- 
ported articles, in order to shelter an infant manu- 
facture until it can take root in the soil. But political 
economy compels us to be reasonably sure that the 
article is one which can be profitably made or pro- 
duced here, after protection is withdrawn. When we 
have a given amount to raise for the government, 
and duties on imports are the best mode of raising it, 
we charge and distribute the duties so as best to coun- 
teract foreign protective systems and aid our own in- 
dustry; but this is secondary and incidental protec- 
tion. How many statesmen are there now that would 
raise a surplus revenue for the sake of protection.^ 
It is now common knowledge that this revenue, as 
we fondly call it, is only a tax upon ourselves, one 
third of which is spent in the collection. 

I will now ask the attention of the House to the 
question more immediately before us; and I hope 
this introduction has not been without its bearing. 
I trust we shall have gained something by advanc- 



USURY LAWS 123 

ing in this manner to the examination of our sub- 
ject. 

Mr, Speaker, I will never vote for a bill, in what- 
ever form it comes, the object of which is, or the tend- 
ency of which is, to raise the rate of interest on 
money, by law. I will never vote for a bill the effect 
of which is to enable the interest on money to rise, if 
it can be by law kept down for the benefit of the poor 
borrower. I admit it has been true in times past — 
I trust it is no longer true — that the borrowing were 
the feebler class, and the lending the powerful class. 
If in those times you would have favored either, it 
should be the borrower. Perhaps in ancient days 
such laws may have been of some practical use, as a 
protection to the poor. 

I said the usury laws had a noble origin, in religious 
convictions and in philanthropic motives. Therefore 
I desire to speak of them with a degree of respect. 
The Mosaic law has always been supposed to prohibit 
the receiving of interest for money. All interest was 
usury. The Mosaic law did not prohibit the taking 
of usury from strangers, and therefore it was not con- 
sidered a malum in se, but was simply a regulation 
between the Jews themselves. Gentlemen will see 
the difference between the state of things then and 
now. The Jews were a peculiar people, isolated, ex- 
clusive, without commerce, without trade, without 
manufactures, — nothing but the distaff and shuttle 
under the tent, or two women grinding at a mill. They 
had no mode of investing capital. Capital consisted 
in gold, jewels, and raiment, which was laid up in 
chests, and which they used as they needed. For a 
man to lend money to his neighbor was very much 
like a man's now lending a book to his neighbor. 



124 RICHARD HENRY DANA, JR. 

Any of us would be ashamed to charge for lending a 
book to his neighbor. I have been in countries where 
the capital of the rich was laid up in iron chests, and 
they could not invest it. That was the state of things 
among the Jews, who were brethren, one man's sons. 
For those reasons they would not take money for their 
little loans, — mere accommodations between one 
another. 

When Christianity became the religion of Europe, 
this Jewish system was introduced and insisted upon 
by the church, in the Judaizing tendencies of those 
days. I think it no disrespect to say that the ancient 
church went too far in attempting to fasten the Mo- 
saic policy upon the governments of that period. But 
I do not think gentlemen will find that the prohibi- 
tion of interest was due solely to the Mosaic system. 
It is to be ascribed in part to Christian philanthropy. 
Borrowers were poor, lenders were rich. 

Nor was it the system of Moses alone. What greater 
name than that of Aristotle .^^ He said money could 
not produce money, as it was, in its nature, barren. 
The earth could produce; its products could be con- 
sumed; but money produced nothing. Therefore, 
said the great Aristotle, money ought never to bear 
rent. Now who do you suppose was the first person 
that exposed this fallacy.^ Not one of his contempo- 
raries, nor one of the philosophers of the middle pe- 
riod, but the great reformer, John Calvin, in one of 
his powerful Latin paragraphs, exploded the fallacy 
of Aristotle, and relieved mankind from its incum- 
brance. But how long do you think it had borne 
sway over the minds of men.^^ Nineteen hundred 
years! One of the effects of the Reformation was to 
lessen the influence of these laws and maxims; yet 



USURY LAWS 125 

Christians always took hold of them with great ten- 
derness. 

Gradually there came up a great deal of mercantile 
and manufacturing industry, and a necessity for cap- 
ital; and the capitalists, instead of locking up their 
money, put it in a position where it might increase; 
in other words, they lent it. Gentlemen will see that 
capital is most called for where there is the most in- 
dustry. A live country calls for capital, and can pay 
for it; a dead country cannot. After the discovery of 
America, capital was in demand, and men were ready 
to pay interest on it. Then the theologians were 
obliged to review their teachings. If it had come to 
this, that money must be had, and men would pay 
interest on it, ecclesiastical ethics must be revised. 
It was then noticed that in one of the parables, the 
man who got ten talents for his ten talents was praised 
— *' Well done, good and faithful servant " ; he had lent 
his money to usurers, and, it would seem, at a high 
interest. But philanthropy still held on to the sys- 
tem, to this extent: your capitalists may lend money, 
but they shall not extort; they shall not receive more 
than its fair value. This is a moral law. To-day and 
here, the rate of legal interest is six per cent; but if, 
when the market value is five, a person takes six, he 
is morally as guilty of extortion as if, when the value 
is six, he should take seven. He would be taking ad- 
vantage of another's necessities, and receiving more 
than a fair value for money. The early laws had in 
view this object, to prevent the powerful lender get- 
ting more from the needy borrower than — what.^^ 
Six per cent.^ No; there is nothing in nature that 
points to six per cent, — from getting more than the 
fair value at the time. I coincide with that entirely. 



126 RICHARD HENRY DANA, JR. 

I agree that if you could pass a law which should not 
fix, but ascertain the market value of money every 
day, that would be right. In early, simple times, the 
value could be ascertained, nearly. But as business 
increased, the means for ascertaining the rates failed. 
It was found at last that fixed legal rates could not 
be adjusted to the real value of money. Can it be 
done now.f^ Let any man take up a newspaper and 
examine it, and he will see that money fluctuates not 
only week by week and day by day, but hour by hour. 
You would be obliged to have a commissioner on every 
curbstone, and a financial clock at the head of State 
Street, to record the changes by the minute; and then 
punish men who took excess, as ascertained by the 
clock ! 

The usury laws of this day do not stand on the prin- 
ciple of prohibiting extortion, but on that of fixing the 
market rate of interest by legislation. Having fixed 
a permanent and purely arbitrary rate, you treat 
lending at that rate, although it be above the market 
value, and therefore extortionate, as right; and treat 
lending above that rate, though below the market 
value, as wrong. 

The rate of interest is governed by laws of trade. 
It depends upon the demand and the supply; not upon 
the amount of capital in the country, but the supply 
for loan. It is sometimes carelessly said that it de- 
pends upon the amount of capital in the country. 
You might as well say that the price of fish in Faneuil 
Hall Market to-day depends upon the quantity of 
fish in Massachusetts Bay. The rate of interest de- 
pends upon the amount in the market for loan, and 
upon the character of the demand as well as its 
amount, because we must look at the security. When 



USURY LAWS 127 

we speak of the market rate of interest, we assume 
that the security is perfect. If you cannot ascertain 
the rate of interest upon perfect security, so as to 
affix to it by legislation a standing rate which shall 
be its real value, still less can you do so as to all the 
degrees and kinds of inferior and questionable security. 
Nevertheless, your legislation has sought to keep in- 
terest down to one rate, in all cases alike. 

Why, Mr. Speaker, place on this table before us 
three samples of flour; one superfine, one fair, and 
one inferior. If, after the old style, you should wish 
to regulate by law the price of flour, would you com- 
pel the merchant to sell all at one rate.^^ Now, place 
on this table three notes, on which money is to be 
lent. One has perfectly good security, one inferior, 
and the third no security at all. Would you compel 
the capitalist to lend on all at one rate.^^ Certainly 
not, in justice. Yet that is what you do by your usury 
laws. If times are such that the best paper must give 
six per cent, you will not permit the hirer to give or 
the lender to take more than that on the inferior. This 
is one of the absurdities of your usury laws. They 
not only take no account of the market of the world, 
which moves with the irresistible power of ocean tides, 
affecting proportionally all securities, good and bad; 
but they take no account of the quality of the secu- 
rities offered for sale. If in time of panic a note with 
perfect security must pay six per cent a month, the 
lender is permitted to take but one-half per cent a 
month for the poorest. He must take the same in- 
terest on an inferior note for twelve months as on 
a perfect note for twelve days. If a poor man, in 
dire need, with poor security, but his best, wishes 
to borrow, and a better note than his is worth six 



128 RICHARD HENRY DANA, JR. 

per cent, he is not permitted to offer anything above 
that. 

It is time now, Mr. Speaker, that the House took 
up the question of practicability. Can you keep down 
the rate of interest by legislation, if you would .^^ That 
question must be answered by gentlemen before they 
have a right to respond aye or no on this matter. 

There is a good deal of instruction to be derived 
from the steady set of events. There has been a uni- 
form tendency toward the abolition of the usury laws 
for the last eight hundred years, among liberal minds, 
and advocated upon the most enlightened reasons. 
Gentlemen who have defended the usury laws on this 
floor, as special friends of the poor, should be re- 
minded that it has been the friends of the poor, the 
philanthropists, the statesmen of liberal ideas, who 
have advocated and carried the reduction or repeal 
of the usury laws. 

In England, during the Regency, in 1818, a report 
was made by a committee of Parliament, who exam- 
ined the borrowers and the lenders, and came to the 
unanimous conclusion that the usury laws ought to 
be entirely repealed. That report went to the House 
of Commons, but Parliament was not ready for it. 
Adam Smith found no excuse for usury laws except 
on two points, to protect spendthrifts and repress 
projectors. Toward the close of his life, he read the 
argument of Jeremy Bentham, and acknowledged 
himself mistaken on those two points. So the Scotch 
financier, McCulloch, and Stuart Mill, and other 
writers of eminence, advocated the repeal of the usury 
laws. But they could not, at first, carry it through 
the House of Commons. It was opposed by a large 
class of persons, but not the same class who have 



USURY LAWS 129 

opposed it here. It lay by ten years; was brought up 
again, and defeated; lay by ten years more, and in 
1839 they went to this extent — they abolished the 
usury laws on commercial paper that had less than 
twelve months to run. Then, in 1850, they abolished 
the usury laws on everything but loans on real es- 
tate; and on those, interest could not exceed five per 
cent. The great landed proprietors of England op- 
posed the repeal, and were the last men to yield their 
opposition, because they thought the usury laws en- 
abled them to get money at lower rates on mortgage. 
Here, with us, an opposition comes from a class of 
small land-owners, on the same grounds. They think 
they can get money for less, on their farms, if the law 
is retained. 

The law remained in that state about five years, 
and I think it was in 1855 that England abolished 
the usury laws altogether, by a bill similar in its fea- 
tures to that which we are acting upon to-day, but 
as to which I am ashamed to say, the mother coun- 
try is twelve years in advance of us. Money still con- 
tinues to be loaned in England at much lower rates 
than here. It is an open market. Have the poor bor- 
rowers ever complained .^^ We read with deep interest, 
as we ought, all that concerns the middle and lower 
classes of England; we read of the disabilities under 
which the poor suffer; and we see the reports of the 
processions, numbering some twenty thousand, who 
lower their banners and cheer as they pass the United 
States Embassy, and sing John Brown, and I would 
ask if any of them complain because the usury laws 
have been abolished.'^ Did Richard Cobden, does 
John Bright or Stuart Mill, demand usury laws.'* 
Was it an article in the creed of the Chartists.'* Look 



130 RICHARD HENRY DANA, JR. 

over the banners in that vast procession the other 
day in London. There was almost everything else 
there, but not a word about usury laws. The common 
people are satisfied that they are better off without 
them. 

Look at Holland. Holland is a free country, a coun- 
try dear to every lover of liberty. Holland fought for 
her freedom and religion, against Spain, in those no- 
ble wars, for principles so dear to every lover of liberty 
the world over, recorded with such spirit by our towns- 
man, and — I regret to say — our late Minister to 
the Court of Austria, a Boston boy. Holland has no 
usury laws. But there are more poor, industrious 
people in proportion to the population there, than 
almost anywhere else. What is the rate of interest 
there .f^ It varies from three to five and a half per cent. 

You have a right to respond that this may be a 
very good thing in England or Holland, but how will 
it be in Massachusetts .^^ Let us look at the principle. 
Gentlemen need take into their minds but a single 
argument. If it were my own argument, I hope I 
should not be so vain as to call it unanswerable; but 
it is the argument of all the great writers for the last 
quarter of a century, — an argument which has shown 
from principle that the usury laws must be, and from 
statistics that they are, worse than nothing. 

With your leave, I will put the argument thus. 
Suppose the natural rate of interest to be, here in 
Massachusetts, seven per cent. By the natural rate, 
I mean the rate it would come to, in the absence of 
legislative interference, if the borrower and lender 
came directly together in the market. Now appear 
the philanthropists, and say that seven per cent is 
too much for men to pay, and enact laws which pro- 



USURY LAWS 131 

hibit the giving or taking more than six per cent. 
Suppose there are fifty millions of capital in the mar- 
ket to be loaned, when the usury law goes into opera- 
tion. What will be the effect of the law? I think we 
will all at least agree on this, that it will divide the 
capitalists into three classes: those who will lend at 
six per cent, those who will not lend at all, unless they 
get their money's worth, and those who will disobey 
the statute and take all they can get. I admit there 
will be a few of the first class, men who will lend at 
six per cent money that is worth seven. They are men 
scrupulous about formal laws, although they see no 
moral wrong in the forbidden act. They are in the 
habit of investing in loans, and do not like to change 
their habits, or are too old, or inexperienced, or timid, 
to put their capital into business. But this class is 
not large, and is diminishing every year. The second 
class will not lend at less than the full value, and yet 
will not take the risks or disrepute of violating a law, 
nor resort to the circuities and chicanery and middle- 
men such loans entail. They invest in government 
securities at 7-20 per cent; or, if they are active and 
enterprising, turn their capital into business, add their 
own skill, care, and industry to it, and make twelve 
per cent and more. The second class takes from the 
private loan market a large part of the supposed fifty 
millions, — perhaps a third or a half. The effect of 
this is to raise the rate; for the supply is lessened, and 
the demand is not, but becomes the more anxious 
and eager. 

Now, gentlemen will see to what condition such 
legislation has brought the borrower. He must have 
his money, or fail. It is no longer the natural rate 
of seven per cent that he is to give, on perfect secu- 



132 RICHARD HENRY DANA, JR. 

rity, but nine or ten per cent, and he is brought to an 
inferior class of money-lenders. But this is not all. 
Another element is forced in. There is insurance to 
be charged for the risk the lender takes in lending on 
illegal security; for, if the borrower will not turn 
against him and refuse to pay the interest, the bor- 
rower's assignee in bankruptcy, or his executor, may 
feel it his duty to do so. Nor is that all. Something 
is to be charged for the disrepute attending the trans- 
action. But there is a larger addition still. These 
transactions require secrecy, circuity, transfers of 
notes, drafts, and fictitious exchanges, and above all, 
the middlemen, who must be employed, that the real 
parties may not be known. How much do these mid- 
dlemen charge.^ That you never know. No man on 
earth is so well placed for extortion as the middleman, 
who holds the secret of both parties in his hand. As 
you have brought your borrower down to dealing 
with a less respectable, less responsible class of men, 
he must bear the consequences. And what rate does 
the distressed borrower at last pay for that which he 
could have got openly, like a man, face to face with 
the lender, at seven per cent, because you thought 
to force by legislation the market rate below its nat- 
ural level .^ 

Mr. Speaker, I have been assuming, so far, that 
the borrower offers satisfactory security. But sup- 
pose he does not. An honest but poor man, with a 
family, is a little behindhand, and must pay a debt, or 
have his property taken on execution ; or an enterpris- 
ing young man, with health and skill and character, 
but no capital, wishes to borrow a sum to put with his 
industry and skill, with a fair hope of profit. Neither 
of these men can give perfect security. All hangs on 



USURY LAWS 133 

their lives or health. Death, or a long fever, lasting 
through the season, will leave them penniless ; and in 
all probability, if they are young men, they hold their 
houses under purchase-money mortgages, and can 
give no landed security. If theoretically perfect se- 
curity, driven to middlemen and circuitous trans- 
actions, ends in giving ten per cent, where will such 
borrowers as these be, in such hands .^ The strong and 
enterprising young man will give the utmost that his 
expected profits will allow him to give, without actual 
loss, for he must work; but the distressed debtor must 
sell, or let his creditor sell, all he has, to meet the 
payment of his debt. 

This leads me to call the attention of the House 
to another anomaly of the usury laws. You put the 
borrower under guardianship, as to money, and limit 
him to six per cent, whatever the market rate, what- 
ever his need, and whatever his security. But you 
leave him his own master as to everything else. He 
must not borrow money at seven per cent, but he 
may sell the very ground under his feet. He cannot 
be trusted in the money-market, but the pawnbroker's 
is open to him. He may sell all he has, to gratify his 
passions or to meet his necessities, and no one can 
interfere to save his wife and children, unless he is 
so far gone as to be no longer sui juris. Take the case 
of the poor, honest debtor. Sickness or misfortune 
has left him in debt, and a hard creditor, or an insti- 
tution or trustee that acts by rule, is pressing him 
to an execution. If he could borrow a thousand dol- 
lars, on a year's or three years' loan, he could pay the 
debt, and have a little with which to begin again. 
But with his poor security, and the high state of the 
market, he cannot get the money at six per cent. 



134 RICHARD HENRY DANA, JR. 

You prohibit him from giving seven, even if he must 
sell the land under his feet, the house over the head 
of his wife and children, and all their useful or en- 
deared furniture, which they may never get back, and 
sell it all at a ruinous loss, as is always the case in 
forced sales, — a loss of at least twenty-five per cent. 
And this to save him from paying more than six per 
cent! In forced sales, or sales on execution, it is known 
that articles seldom realize over two thirds their 
value, and then there are the taxable costs, and all 
other expenses to be deducted. The debtor might 
have saved all this by a loan for a year, more or less, 
at the market value of his security. What shall we 
say of such legislation .^^ Is it not preposterous.^ Is it 
not discreditable. f* Is it not a shame upon our intelli- 
gence and public spirit and humanity .^^ 

But I have not yet presented to you the worst fea- 
tures of your law. I have taken ordinary times, when 
the natural rate is six or seven per cent on theoreti- 
cally perfect security. But what shall we say of those 
times of distress and panic, — of times when all rules 
and rates fail, — when the strong men bow them- 
selves.^ The gentleman from Walpole (Mr. Bird) has 
told us, here in his place as a legislator, — of all others 
bound to respect the laws, — he has told us that in 
the crisis of 1857 he paid, once, five per cent a month. 
He must meet his notes or fail. That was not all. He 
felt bound in honor to pay his debts, if he could pos- 
sibly get the money, that others might not fail who 
depended on him. He had a friend who had the money; 
it would bring more in the market, but he let Mr. 
Bird have it at five per cent per month; and Mr. Bird 
has told us it was the cheapest money he ever bor- 
rowed, that he never paid interest so cheerfully, and 



USURY LAWS 135 

that he felt grateful to the lender as a true friend in 
need. After such a statement as this, — and it is but 
a sample of what thousands can tell us in every time 
of distress, — what is your six per cent law good for, 
as a financial restriction? Its moral aspects I shall 
have occasion shortly to call your attention to. As 
soon as money begins to rise with the demand, and 
failures thicken, capital, proverbially timid, begins 
to withdraw itself, and as the crisis comes to its height, 
some will not lend at all, and others only at enormous 
interest; for it is in fact insurance upon ships on a lee 
shore. Then the Jews emerge from their alleys, and 
the curb-stone brokers swarm, and need and fear and 
distrust and avarice act and react, until the end is a 
panic. Are your usury laws of any value then, to 
furnish money at six per cent? They are forgotten 
or laughed to scorn. The man who cannot borrow can 
sell, and merchants will sell at prices as ruinous as their 
loans could possibly be. The usury laws are lost sight 
of long before the panic is reached. Their effect is 
felt only in the first stages, when, but for the law, 
capital would be let at its proper rate. Then the law 
drives away all who will not lend at the Quixotic rate 
of six per cent, and gives over all doubtful security to 
despair. In such times, its effect is to hurry the first 
steps, and to turn a simple stringency into a distress, 
and a distress into a panic. 

Your laws make no allowance for changes in the 
state of the market. The British corn laws had a slid- 
ing scale. So, in several of the states, there is a scope 
allowed under the usury laws. In Indiana, Illinois, 
and Iowa, the rate is between six and ten per cent; 
in Mississippi and Florida, between six and eight per 
cent; in Michigan and Wisconsin, between seven and 



136 RICHARD HENRY DANA, JR. 

ten per cent; in Minnesota, between seven and twelve 
per cent; in Texas, between eight and twelve per cent; 
while in California there have been no usury laws 
since 1850, with ten per cent in the absence of a con- 
tract. But we adhere to an iron rule, as they do in 
New York; and an attempt to allow a margin from 
six to eight per cent found no favor in this House. 
Members talk as if there were something in nature 
that pointed to six per cent; when, in fact, the rate 
is rarely at six per cent. Not only do the rates al- 
lowed by law in those states vary from six per cent 
to twelve, but I hold in my hand a letter from one 
of our first merchants, whose name would command 
the respect of this House, as well for his philanthropy 
and patriotism as for his financial skill, giving the de- 
tails of the rates at which he has borrowed and lent 
money for the last five years, on the best security, 
and the average is nearer eight per cent than seven. 
I have here also a schedule from the cashier of a bank 
in State Street, giving the rates charged yesterday for 
discounts on the best of paper, much of it from New 
York. It gives the names of parties, the amounts and 
terms. There is not one at six per cent, indeed none 
below seven, and varying from seven to seven and 
three fourths. Gentlemen will see from this how 
openly their laws are violated, even by the banks; for 
although these are National Banks, they are, by act 
of Congress, bound by the several state laws, as to 
discounts. 

While the legal rate in New York is seven per cent, 
Massachusetts capital will go there; not the small 
quantities, I admit, for they will not pay for the trou- 
ble and risk; but capital held in large masses, on which 
a small advance insures a large profit. Rhode Island 



USURY LAWS 137 

repealed her usury laws last year; and now, when 
money rules high at Providence, Boston capital goes 
there. 

There are causes for these different rates, in differ- 
ent states, as in the same states at different times, — 
causes that are constantly in operation, and too sub- 
tle and volatile to be held in the chains of a perma- 
nent legislation. 

I would now like to call the attention of the House 
to the moral aspect of this question. The spectacle 
on this floor the other day was a lesson not to be for- 
gotten. We all knew that the usury laws were but 
little regarded at any time, and were swept out of 
sight in times of panic. But when a legislator rose in 
his place, in the very hall of legislation, and told his 
brother legislators, with an open brow and clear con- 
science, that he had paid five per cent a month, and 
thought it his highest duty to pay it, and esteemed 
the man who lent him money at that rate his best 
friend in need, did any of you think the less well of 
our respected friend .^^ Did even the incongruity of 
such a declaration from a law-maker suggest itself to 
your minds .'^ But let me put you another supposition. 
Imagine, if you can, that the gentleman from Wal- 
pole had obeyed the laws against usury, and gone 
down into bankruptcy, and swept others along with 
him, who had trusted to his solvency, rather than pay 
anything over six per cent : would you not have doubted 
either his sanity or his good faith .^ But let me put the 
case to you in a far stronger light. Imagine, if you 
can, that having taken this money from his friend 
at the agreed rate, and so saved himself and others 
from bankruptcy, he had done what the law of Massa- 
chusetts tempts him to do, expects him to do, and, 



138 RICHARD HENRY DANA, JR. 

if law is law, I have a right to say, commands him to 
do; suppose when pay-day came round, he had turned 
upon his friend, refused to pay him any interest, and 
deducted three times the excess from the money he had 
borrowed! It is not possible even to suppose such a 
thing of him; but suppose it of some imaginary man, 
some ideal keeper of the law. He could not show his 
face on 'Change! He could not have been elected 
to this House, where the very law is made which he 
had strictly followed ! 

It is usually said that laws should not stand upon 
the statute book which have not the moral support 
of the community, because they lower the dignity of 
all government, and demoralize the public mind by 
familiarity with disobedience. But what shall we say 
of laws which not only the moral sentiment does not 
support, but which the natural sense of justice, the 
instinct of honor, actually condemns.'^ In olden times 
the taking interest above the legal rate was a crime, 
punished by imprisonment. That penalty could not 
be enforced, because public sentiment condemned it. 
We receded so far as to make it a forfeiture of princi- 
pal and interest. That failed, for the same reason. 
Men thought it too hard, and would not enforce it. 
We next receded with our penalties, until we came 
to the moderate infliction of the loss of all interest 
on the loan and a deduction from the principal of 
three times the excess over the legal rate. But this 
moderate penalty you cannot enforce. Yet it is all 
you have left; for the transaction is secret and cov- 
ered by a false statement of the principal sum, or by 
other means, and unless the borrower turns against 
the lender and testifies, you can do nothing with the 
transaction; and the borrower had better pay any 



USURY LAWS 139 

amount of usury than incur the total loss of credit 
ever afterwards, which would follow his turning upon 
the lender. Under usury laws the loan must always 
bear the aspect of legality, and courts and juries ren- 
der verdicts and judgments on extortionate loans 
without suspecting it. The poor borrower must suf- 
fer in silence, — must bleed to death in secret. But, 
if there are no prohibitory laws, the rate actually paid 
is more likely to be known, and public opinion be 
brought to bear upon the unreasonable lender, and 
sympathy, if not relief, extended to the borrower. 

But in what attitude has this legislation placed our 
honored Commonwealth? Unable to make usury a 
crime, she tempts the borrower, by a large pecuniary 
reward, to commit an act of baseness towards the 
lender, for which the instincts of the meanest of her 
citizens will despise him. In the darkest regions of the 
criminal law, dealing with men of blood and fraud, 
we tempt one to the betrayal of another, and employ 
spies, and false colors; for such men are in a state of 
war against society. We are dealing with moral guilt, 
universally recognized as such, but even there, we 
despise the thief that betrays the thief. But there is 
no element of right or wrong about six per cent or 
seven per cent. The community recognizes no ele- 
ment of guilt in dealing with money at the market 
rate, if there be no fraud or extortion. And for fraud, 
or duress, or gross extortion, or undue advantage 
taken, a court of equity will afford relief. But the 
moral sentiment of the "least erected spirits" in 
the community is above the temptation which your 
legislation offers them, as the only means of enforc- 
ing itself. It is not fit that the jurisprudence of Mas- 
sachusetts should bear the shame longer. 



140 RICHARD HENRY DANA, JR. 

Let us examine, Mr. Speaker, the reasons — I 
would rather say the excuses — for maintaining this 
system. All writers on political economy during the 
last fifty years, of whom I have information, however 
much they differ in other things, have agreed in con- 
demning the usury laws. It is true the opponents of 
our bill have exhumed a single pamphlet, written by 
the late Mr. Whipple of Rhode Island, and spread it 
about the House, not without some effect. But do 
gentlemen know that, though republished some eight 
or ten years ago, for a special purpose, that pamphlet 
was written more than thirty years ago, as an article 
in a law magazine, by a gentleman of the last genera- 
tion, whose ideas were drawn from the generation 
before that — before the time of Bentham, McCul- 
loch. Mill, Wayland, and the encyclopaedists of Great 
Britain and America .^^ Mr. Whipple advised Rhode 
Island to increase the severity of her usury laws, and 
to fall back upon the Statute of Anne. No doubt he 
thought that if Rhode Island would only rest her 
political system on the Charter of Charles II, and her 
financial system on the Statute of Anne, she would 
indeed be the model commonwealth of America. But 
Rhode Island has followed the later and wiser advice 
of her other eminent citizen. President Wayland, and 
repealed her usury laws altogether, as have Holland 
and California. Great Britain, I had the honor to 
remind you, repealed hers twelve years ago, and any 
man who would there ask for their reenactment would 
be considered as insane as if he moved for the resto- 
ration of the Heptarchy. 

But the facts being all against the continuance of 
the usury laws, what are the theoretic excuses for 
their maintenance.'^ It is said that the borrowing class 



USURY LAWS 141 

is the feebler class ; that the borrower is at the mercy 
of the lender and needs protection. I hope I have 
shown that, if this were true, the usury laws fail to 
help him, at the only time he needs help, when the 
rates of interest are high, or his security is poor, — 
in fact that they make his condition the worse. But, 
Mr. Speaker, the relations between the borrower and 
the lender are not now, especially in New England, 
what they were once in history. The borrower is 
no longer the trembling suppliant at the threshold of 
the patrician lender. Who are the borrowers now.'* 
The railroad, manufacturing, steamboat, and mining 
corporations. They are borrowers, — those great cor- 
porations that are suspected of controlling the poli- 
tics of our states and towns. The state and national 
governments are borrowers. All mercantile enter- 
prises require loans of credit; and the great merchants 
and manufacturers are borrowers one day and lenders 
the next. The great builders are borrowers. One of 
the members from Boston, who called himself a me- 
chanic, spoke warmly for the right of the poor me- 
chanic to get his loan at six per cent. But I find, on 
inquiry, that that member is a great builder; he builds 
those large blocks of houses, too costly for you or me, 
sir, to live in, and sells them for prices that we cannot 
afford to pay. He buys land and builds his houses 
upon borrowed money, and sells upon credit secured 
by mortgage. He fears no usury laws, as a lender; 
for his extra interest is put into the purchase money; 
and no doubt he would be glad to cheapen the rate of 
borrowing, where it is an actual money loan in the 
market, for there he is a borrower. But, even so, I 
hope I have shown that his calculations are mistaken. 
Again, it is not the poor mechanic that is the borrower. 



142 RICHARD HENRY DANA, JR. 

The journeymen the member from Boston employs 
are not borrowers. Hired laborers in this country sel- 
dom are. It is mostly enterprise that borrows, and 
capital borrowing more capital. 

Who are the lenders in this country.^ I know that 
great capitalists and banks of discount are large 
lenders; but men of moderate capital are also lenders, 
sometimes singly and sometimes by association. But, 
sir, by a miracle of this century, the poorer classes, 
the day laborers, the seamstresses and household ser- 
vants, the newsboys in the streets, have become cap- 
italists, and lend to the rich and great. Formerly the 
poorer class of laborers, laying up their small sums of 
five or twenty dollars, too small to lend at interest, 
hid them away in stockings, or buried them in chim- 
ney-corners, and were tempted to spend them be- 
cause they had them at hand and were gaining no- 
thing from them. A benign Providence put it into 
the heart and head of some persons, early in this cen- 
tury, to establish a system by which these drops that 
fell upon the earth only to sink into it, were saved and 
gathered up into little rills, which flowed together and 
formed a steady stream of public credit. These, sir, 
are our savings banks. Some gentleman can perhaps 
tell me the exact number of tens of millions in the 
savings banks of Massachusetts to-day. [Mr. Plumer 
of Boston. — Seventy millions.] These seventy mil- 
lions, then, sir, constantly in the loan-market, are al- 
most entirely the property of our poorer classes. They 
form this new element that enters into the changed 
relations of the borrowing and lending classes in New 
England. Your usury laws extend to them; and, as 
the trustees of those banks do not think it just to the 
poor depositors to lend their money at six per cent, 



USURY LAWS 143 

when they can lawfully get more, they have with- 
drawn a large share of this seventy millions from the 
loan-market, and invested it in government securi- 
ties at over seven per cent, thus diminishing the sup- 
ply, and necessarily increasing the rate of interest. 

It must be remembered, too, that the borrower in 
the small country town need no longer be subject to 
the one rich lender of the town. The rapid diffusion 
of information by railroad, telegraph, post, and es- 
pecially the daily papers, will carry the rates of the 
money-market almost daily into the remotest towns 
of New England. Money will find its level, whether 
on the flat of State Street, or on the bleak hill of the 
remote town of Peru, whose representative addressed 
us yesterday. 

The only practical objection to the repeal seemed 
to me to be the fear that the banks of discount might 
combine and keep up an artificial rate of interest. I 
have made careful inquiries on this subject, and am 
satisfied that there is no more practical danger on that 
head than the community must always incur in its 
financial transactions. The banks are numerous. 
There will be competition among them. And there 
is not only the competition of private lenders at home, 
but the competition from abroad. Capital is drawn 
toward demand. State lines and town lines are disre- 
garded. Loans are made in a few minutes by tele- 
graph; and it will more and more be the case that, 
when an inadequacy of supply to the demand, or a 
combination of lenders, has raised the rate of usance, 
an influx from abroad will bring it to its natural level. 

I desire to express my thanks to the House for the 
kind attention they have given me. My wish has been 
to satisfy the minds of the doubtful, and if possible to 



144 RICHARD HENRY DANA, JR. 

make converts of opponents. As for myself, sir, I shall 
vote for the repeal of the usury laws, because I do not 
think they aid the borrower, but rather bring him to a 
worse condition than he would be in, in an open mar- 
ket. They have balked the humane purposes that gave 
them life. I vote for their repeal, because I think 
them in violation of the immutable laws of trade, and 
therefore necessarily leading to evil ; because they are 
of no effect when the market-rate is equal to or below 
the legal rate, and, when it is above, tend to fright- 
en away capital, induce chicanery, circumventions, 
frauds, and go-betweens, and to introduce the borrower 
to the worst class of lenders. I vote for their repeal, 
because they familiarize the community to the sight 
of a disobedience of law by the best of citizens, and 
consequently to a severance of law from morals. I vote 
for their repeal, because the steadily advancing public 
sentiment, gradually enlightened by generations of 
experience, no longer believes them politic or just, 
or regards the breach of them as a crime, an immoral- 
ity, or even an impropriety. And lastly, sir, I vote 
for their repeal, because they place our beloved Com- 
monwealth in the undignified position of tempting 
the borrower to commit the most ignominious of 
offenses, in the vain effort to prevent that which 
no one considers to be a crime. 



VI 

FREE SOIL MEETING, 1848 

At Boston 

"Remarks on taking the Chair at the Free Soil Meeting, 
AT the Tremont Temple, Friday Evening, July 7, 1848. 

I THANK you for the honor you do me (and it is 
certainly a gratifying one) by placing me in this po- 
sition. Before I accept it, and enter upon its duties, 
it is perhaps but fair that I should be permitted to 
define it. If in doing this I appear to speak much of 
myself, I have the apology of believing that I speak 
the feelings of hundreds, perhaps of thousands, of the 
young men of the Whig party of Massachusetts. Since 
the nomination of General Taylor was announced, I 
have spoken with them constantly, I have met them 
at the corners of streets, in court rooms, in public con- 
veyances, and I believe I speak their feelings when 
I speak my own. I believe you will hear from them 
before many days, or many weeks, are gone by. 

I am a Whig — a Whig of the old school; I may 
say, without affectation, a highly conservative Whig. 
I voted for Mr. Winthrop last year, and under the 
same circumstances I should vote for him again. A 
war declared by the law of the land is a war for you 
and for me. I have voted for every Whig nomination 
since 1840, when I cast my first vote. I am in favor 
of supporting all the compromises of the Constitution, 
in good faith, as well as in profession. 



146 RICHARD HENRY DANA, JR. 

Why, then, am I here? I understand this to be 
no meeting for transcendental purposes, or abolition 
purposes, or politico-moral reform. It is a meeting 
of those who desire to see if they cannot do better than 
vote for either Cass or Taylor; to see if the twenty 
millions of America cannot furnish a better candi- 
date than either of them. You are not assembled in 
any hostility to the South. There is much to admire 
in the Southern character; there are some points in 
which it is superior to our own, as some in which we 
think it otherwise. We are ready to vote for General 
Taylor if he owns two hundred thousand slaves in- 
stead of two hundred, if he is with us against the ex- 
tension of slave territory. The " subject of our story " 
is simply this. Massachusetts has deliberately taken 
a position in favor of excluding slavery from new 
territories, leaving each State now in the Union to 
manage its own slavery. Her legislature has almost 
unanimously passed resolves to that effect. Her Whig 
Conventions, in counties, have, almost if not quite 
without exception, done the same. The Convention 
at Springfield last autumn unanimously passed the 
resolution I hold in my hand : — 

" Resolved : — That if the War shall be prosecuted to 
the final subjugation and dismemberment of Mexico, 
the Whigs of Massachusetts now declare, and put this 
declaration of their purpose on record — that Massa- 
chusetts will never consent that American territory, 
however acquired, shall become a part of the Ameri- 
can Union, unless on the unalterable condition that 
'there shall be neither Slavery nor involuntary ser- 
vitude therein, otherwise than in the punishment of 
crime.' " 

Now, we are here because we intend to adhere 



FREE SOIL MEETING, 1848 147 

to this resolution. The dignity of Massachusetts re- 
quires her to adhere to it. Not only must we adhere 
to it in words, but in action, in votes, and at any 
political hazard. 

When General Taylor was nominated, I feared, in 
common with others, that voting for him would be an 
act of hidijfference, if not of abandonment, of the Massa- 
chusetts platform. I have the honor of personal friend- 
ship — they will allow me to say so — with many of 
the leading Whigs of this city. I conversed with them, 
told them my objections, asked them, entreated them 
for some indications, some evidence that General 
Taylor was with us as to Free Soil. Private conver- 
sations are to be kept private, but I may say they were 
entirely unsatisfactory. The farther I inquired the 
worse it became. Their public speeches and letters 
we have a right to examine, and what are they? Si- 
lence — dead silence! on the whole subject. Mr. 
Choate has spoken in Boston, and Mr. Lawrence in 
Burlington. They have talked upon tariffs, currency, 
war, internal improvements, cotton, — everything 
but the new territories. This was not forgetfulness. 
It weighed heavily on their minds. If they were fol- 
lowing the Wilmot Proviso to its grave, they could 
not have preserved a more respectful silence. Had 
they been under vows of silence, they could not have 
kept them more unexceptionably. Now, one of two 
things is true : there is no escape from it. Either these 
gentlemen do not think the Free Soil question of conse- 
quence enough to speak iipon, or they feel themselves to 
be in a position where they cannot speak upon it. With 
some it is the one, and with some the other; but the 
one or the other with all. We do not mean to stand in 
such a position. The South triumphs at the nomination 



148 RICHARD HENRY DANA, JR. 

of General Taylor, and proclaims it as a defeat of the 
Wilmot Proviso; and the North is silent. The South 
wants nothing better than silence or indifference at 
the North. The indications are not to be mistaken. 
Acquiescence in General Taylor's nomination is to 
abandon the Free Soil question. At best, it is to give 
it its chance. It will be so understood. It is so under- 
stood now. The men at the South who risk every- 
thing else, to defeat the exclusion of slavery from the 
territories, go for General Taylor, and have so from 
the first, heart and soul; and if anybody is deceived, 
it will be the people at the North and not they. They 
know their man. They feel more sure of him than 
they do of General Cass. Our politicians are not de- 
ceived. Their silence shows they are not. 

It is said that Massachusetts will stand alone. Be 
it so. Let us have a lone star at the North, as well as 
at the South. She has taken her ground. There are 
her resolutions, which I have read to you. " Look at 
her, where she stands — there she will stand forever!" 
But it will not be so. The indications are that other 
states will act with us. The race is not to the swift, 
nor the battle to the strong. This, if I understand it, 
is an appeal to the reason, the instincts, the great 
heart of the people. We do not rely on organizations, 
nor on this man or that man, nor on the bait of office- 
holding. We have no power to assign parts in the 
drama of political life. It is an appeal from the poli- 
ticians and organizations that have failed of their 
duty, to the right reason and right feeling of the peo- 
ple. I do not say that it will succeed. It is a matter 
of duty. If it does not, we are but sufferers in a com- 
mon calamity. 



VII 

BUFFALO FREE SOIL CONVENTION/ 1848 

Speech at Faneuil Hall, August 22, 1848 

Reporting the Doings of the Buffalo Convention, in 
Behalf of the Boston Delegation. 

Mr. President, Fellow Citizens: The customs 
of these occasions makes it proper that your dele- 
gates should report to you, in Faneuil Hall assembled, 
the manner in which they have discharged the duties 
of their trust. We rejoice that we have nothing to tell 
you but good news, tidings of enthusiasm unparal- 
leled, and of absolute unanimity. 

We left our homes a few days before the time ap- 
pointed for the session, and as we neared the point 
of attraction, we found ourselves in a great and at 
every step increasing current of intelligent, earnest 
men, American citizens, of all political parties, — 
who, in the eloquent language of Mr. Van Buren's 
letter, "felt themselves called upon by considera- 
tions of the highest moment to suspend rival action, 
and unite their common energies for the attainment 
of a common end, an object sacred in sight of Heaven, 
and due to the memories of the great and just men 
long since made perfect in its Courts." At Buffalo 
was assembled a host of men not to be counted by 
hundreds but by thousands. All day and all night, 

1 See Life, vol. i, pp, 131-144. 



150 RICHARD HENRY DANA, JR. 

the steam engines toiled along the iron tracks, and 
the steamboats ploughed the waters of those Medi- 
terranean seas, with their pillars of cloud by day and 
fire by night, bringing up the faithful Israel to this 
great solemnity. — There were Whigs, who had 
waited in vain to see their own party take up, in good 
earnest, the cause of Free Soil. There were Demo- 
crats, who had borne long enough the hard yoke of 
party discipline, and had at length broken the band 
in sunder and cast its cords from them. There were 
men of the Liberty party, who had toiled and suffered 
fifteen years to bring about this result, full of hope 
themselves, and bearing with them the memories of the 
martyrs in their cause, the Holleys and Love joys who 
had died before the sight. But magnificent and in- 
spiriting as this spectacle was, there were many causes 
of apprehension and misgiving. We found that no 
reference had been had to the suggestion from Colum- 
bus, as to the choice of delegates, but that they were 
chosen in every variety of manner and proportion. 
Massachusetts, as she usually does, had followed the 
rule, and so had some other states, but many states 
had delegates by the hundreds, some towns alone had 
sent fifties, and the Clay Whigs of New York City 
had ninety delegates. Could this vast mass, so con- 
stituted, be organized into a deliberate, representa- 
tive assembly ! And without that, no one would feel 
bound by its action. Nor was this all. The Demo- 
crats of New York had already nominated their can- 
didate, and so had the Liberty party. Would these 
parties and their candidates come into the Conven- 
tion on equal terms with the Whigs, and with each 
other, and abide its result? Unless this was done, 
the Whigs could not, with dignity, go into the ballot. 



BUFFALO CONVENTION, 1848 151 

Then, too, our friends of the Taylor and Cass news- 
papers were particularly attentive to our interests. 
At first they sympathized with us and were afraid 
we should be disappointed, so few persons were com- 
ing to Buffalo. And then, when the streets of Buffalo 
were all but impassable, they said that such a vast 
mass could never be organized. They spoke of plots 
and bargains, and warned the Whigs against the 
Democrats, and the Democrats against the Whigs, 
and they warned us both against the Liberty party, 
and the Liberty party against both of us. But when 
we came to look one another in the face, to join coun- 
cils together, all the apprehensions and suspicions 
vanished in a moment. A meeting of informal com- 
mittees from each state was held, and a plan of or- 
ganization recommended, which was adopted and 
carried into effect without difficulty. There was to 
be a mass convention, consisting of all persons who 
had come up to Buffalo for Free Soil. This was to 
meet under the tent, in the park. There was to be a 
select, representative, deliberate assembly, called the 
"Committee of Conference," to sit with closed doors, 
and decide upon the main questions, and refer them 
to the mass convention for ratification. This select 
convention was to consist of delegates from each state 
represented, equal in number to three times its elec- 
toral vote, namely, six delegates at large, and three 
for each congressional district; the intention being to 
allow one from each of the former political parties for 
each district. It was an interesting and instructive 
sight to see the masses from each state meet at their 
headquarters and select their representatives, at 
large and from each district, fairly from the three 
former parties, and commit the entire power to this 



152 RICHARD HENRY DANA, JR. 

select representative assembly, without a doubt or 
suspicion. And I take it upon myself to say that the 
Committee of Conferees, or Delegates' Convention, 
as it was more generally called, was divided almost 
mathematically into three equal parts, representing, 
in each state and district, the three former parties. — 
And it is worthy of note, that Mr. Van Buren went 
into that Convention with only one third of the dele- 
gation from his own state professed Democrats, while 
one third were Whigs, and the other third Liberty 
party men ; and when the roll of that State was called 
every third man, almost invariably, gave the name 
of John P. Hale. 

On Wednesday morning the mass convention as- 
sembled, and on motion of Preston King of New York, 
Charles Francis Adams of Massachusetts was elected 
its President. And when Mr. Adams came upon the 
platform, when the eye of that vast assembly caught 
the almost preternatural resemblance he bears to his 
father and grandfather before him, when they saw 
the simple badge of mourning about his hat, bringing 
before them the image of his venerated father, and 
when the reverend gentleman who opened the Con- 
vention with prayer asked the blessing of heaven 
upon its officers, and for the President, that the man- 
tle of the father might fall upon the son, the heart of 
that great assembly was moved as one man ; and from 
that hour a strong personal interest was created in 
Mr. Adams, which increased every moment, aided by 
his gentlemanlike demeanor, the excellent address he 
made to the assembly, and their confidence in his in- 
domitable resolution and energy, the characteristics 
of his race. 

Soon afterwards, the Convention of Delegates met. 



BUFFALO CONVENTION, 1848 153 

in a small church without galleries, and sat with closed 
doors, not even admitting a newspaper reporter; for 
we were determined not to be overawed by cheerings 
up and hisses down from the galleries, as they were 
at Philadelphia and Baltimore, and to have no lobby 
members, and side-aisle members; but each man sat 
in the seat allotted to him, under an impending sense 
of personal responsibility. In the proceedings of our 
Convention, there was one thing in which we differed 
from both the other conventions. We would not per- 
mit the subject of the Presidency to be stirred, we 
would not suffer a man to speak upon the Presidency, 
until we had adopted a Platform of Principles. Un- 
like the Philadelphia Convention, which adopted its 
candidates first and its principles — never, we would 
do nothing until our principles were settled and de- 
clared. A committee of three from each state was 
appointed by the mass convention, to report a Plat- 
form of Principles, and the record of our Convention 
reads that we immediately adjourned to such time as 
this committee should be prepared to report. This 
committee was composed of one from each political 
party from each state, appointed by the delegations 
from the several states. It referred the subject to a 
sub-committee of seven, fairly composed, who care- 
fully considered the subject for the greater part of 
the day and night, and agreed upon a platform, unan- 
imously. For its authorship, we are indebted, it was 
understood, chiefly to Mr. Chase of Ohio and Mr. 
Butler of New York. The sub-committee reported it 
to the large committee, which, after discussion and 
some amendments, accepted it unanimously. It was 
then reported to both conventions, and adopted, 
without debate, by acclamation. Every sentence, 



154 RICHARD HENRY DANA, JR. 

every paragraph, was cheered into its legal existence. 
We did not adopt it, as a person adopts a child. We 
felt that it was the common mother of us all! We 
hailed it, and rejoiced that we had it to stand upon; 
and from that moment we felt that the path was clear 
and bright before us. 

Having avowed our principles, we proceeded to 
the nominations. And here we determined to know 
first the exact position of each candidate. We would 
leave nothing to letters in gentlemen's pockets, but 
required a distinct statement, and somebody to be 
responsible for it. We nominated three candidates, 
Mr. Hale, Judge McLean, and Mr. Van Buren. Mr. 
Chase of Ohio, a near relative of Judge McLean's, 
who had his authority, rose and stated that Judge 
McLean positively refused to be a candidate for either 
office. His reasons for this, you have seen in his let- 
ter. I understand them to be these. He is a judge on 
the bench of the Supreme Court. By the recent action 
of the Senate, he felt that he might be called upon, 
in his judicial capacity, to decide some of the prin- 
ciples laid down in our platform, and to which we 
should require his assent; and he was not willing, his 
friends would not permit him, to resign his seat, that 
Mr. Polk might have an opportunity to put a North- 
ern dough-face in his place. These and other reasons, 
satisfactory to himself and his friends, induced him 
to decline the nomination. But, said Mr. Chase, — 
his feelings are with us. The position of Mr. Van 
Buren, the turning point of the Convention, was now 
to be declared, and for that purpose we called upon 
Mr. Butler. 

Mr. Butler responded in a long and able speech, 
the material part of which was substantially this. 



BUFFALO CONVENTION, 1848 155 

When the Free Soil Democrats of New York, com- 
monly called Barnburners, left the Baltimore Con- 
vention, and determined to call a convention at Utica, 
they offered the nomination for the Presidency to the 
principal Democratic statesmen at the North. But 
not a man could be found to accept it. There was no 
expectation, then, that a national Free Soil party would 
be formed. The candidate would have everything to 
endure and nothing to gain, for their utmost hope was 
to keep alive a Free Soil party in New York as the nu- 
cleus of a party which at some future day might be car- 
ried forward to success. All other candidates having 
declined, the mass of the Convention determined to 
force the nomination upon Mr. Van Buren. This re- 
sult his son, and other personal friends, endeavored 
to avert, but the Convention carried it by acclama- 
tion. They said they knew enough of Mr. Van Buren 
to know, that if they could satisfy him that, unless 
he accepted the nomination, the last hope of a Free 
Soil Democratic party would fail, and with it perhaps 
the hope of Free Soil itself in New York, he would 
not decline. Nor were they deceived. He accepted 
the nomination. And here let me say, as a Whig, as 
one nurtured in a dislike and suspicion of Mr. Van 
Buren, that I do not see how we can deny him the 
credit of disinterestedness and magnanimity in this 
act. He had everything to suffer and nothing to gain. 
He had to sacrifice the friendships of years, the asso- 
ciates of a long life, and to meet the most formidable 
of all enemies, former political friends. He had to go 
through the terrible ordeal of a Presidential cam- 
paign, without the slightest hope of success. Having 
thus forced the nomination on Mr. Van Buren, his 
friends were not a little embarrassed about the Buf- 



156 RICHARD HENRY DANA, JR. 

falo Convention. We would require them to come 
into it on equal terms, to abide its result. Could they 
go to Mr. Van Buren and ask him to let them aban- 
don a nomination which they had forced upon him.f' 
But their embarrassment was relieved by a letter 
which Mr. Van Buren wrote, of his own motion, ad- 
dressed to the New York delegation at Buffalo. In 
this letter, which you have seen, he says it occurred 
to him that he might relieve them from embarrass- 
ment, and aid in causing the harmonious result of the 
Convention, by authorizing them to abandon the 
Utica nomination. He did so, assuring them that as 
they knew he had accepted it unwillingly, so he should 
be perfectly content to have another nominated in 
his place. His friends assumed the responsibility of 
acting upon this letter, and put Mr. Van Buren fairly 
upon the Convention, on equal terms with the other 
candidates, to abide the result of the ballot. 

A friend of Mr. Hale then rose, and said that Mr. 
Van Buren authorized them, if the platform of prin- 
ciples was satisfactory, to abandon his nomination 
and put him fairly upon the Convention, to serve the 
cause either as captain, officer, or private. 

All embarrassments were now removed, and we 
had a fair field and two candidates before us, on equal 
terms, but both Democrats — both Democrats. I 
confess this was a mortifying moment for a Whig, 
and especially for a Massachusetts Whig. Where, 
then, was the great sun of our firmament.^ Hidden 
behind a dark and impenetrable cloud. May that sun 
never go down in a cloud! The monument of free- 
dom which we have reared, his hand has not builded; 
but, in his own immortal words, may the last rays 
of his setting sun linger and play about its summit! 



BUFFALO CONVENTION, 1848 157 

Of all the prominent Whig statesmen, there was not 
one willing to put himself upon our Convention, and 
abide the issue of our cause, — no, not one. If there 
is a Whig in Faneuil Hall who doubts about the nom- 
ination of Mr. Van Buren, let him name to me a sin- 
gle Whig statesman of the first class, fit to be the head 
of our party, whom we could have put in nomination, 
or let him forever after hold his peace. 

The Whigs were a fair third of the Convention, and 
we held the balance of power between Mr. Hale and 
Mr. Van Buren. And in this connection let me say a 
word about Mr. Hale. He is a young man, younger, 
I believe, than any of our present delegation in Con- 
gress. He has suddenly risen to an eminence, unex- 
pected to himself and his friends, on account of the 
manly stand he took on the slavery question in the 
politics of his own State. He has not had an enlarged 
experience in public affairs. And I know it to be a 
fact that Mr. Hale himself was satisfied, from the first, 
that it was far better for him to abide his time, than 
to be put forward prematurely for the highest office 
in the gift of any people. And if Mr. Hale does abide 
his time, the people will, in due season, give him the 
proper reward, whatever that reward may be. Mr. 
Van Buren, on the other hand, has held every variety 
of civil office, has been President of the United States, 
and after a most enlarged experience, has had the 
benefit of eight years of private life, eight years of 
retrospection, of sober second thought. And although 
the slavery question is the great question, yet no one 
can tell what issues the state of foreign affairs, and of 
our relations at home, may present to the country, 
during the next Presidential term. We thought, there- 
fore, that, all things considered, Mr. Van Buren was 



158 RICHARD HENRY DANA, JR. 

the stronger and fitter candidate. But there was no 
plan or concert about voting. When the roll was 
called, I did not know how a man was going to vote, 
nor did a man know how I was going to vote. Each 
man voted on his individual responsibility. I am not 
obliged to say, but I prefer to say, that I gave my vote 
for Mr. Van Buren. All but four of the Whig dele- 
gates from this State did the same, and those four 
threw away their votes, on the informal ballot. 

We had no actual ballot, but the roll was called and 
each delegate gave the name of the candidate he pre- 
ferred, it being announced that this was not bind- 
ing either on the Convention, or on the delegate vot- 
ing. Three of the most prominent men of the Liberty 
party gave the name of Mr. Van Buren, and many 
of the others who named Mr. Hale did it rather for 
the purpose of giving Mr. Hale a handsome demon- 
stration, which he deserved, than because they actu- 
ally desired to have him nominated. Forty-one Whig 
votes were thrown away, but these would have been 
given, no doubt, for Mr. Van Buren, on an actual 
ballot. At the close of the roll, it appeared that the 
majority was for Mr. Van Buren. Immediately Mr. 
Joshua Leavitt of this State rose and said he had a 
word to say in behalf of the Liberty party. He was 
called to the platform, and in a speech of about twenty 
minutes, which, under its circumstances, I have never 
heard surpassed for effect, sketched the history of 
the Liberty party. He told us what that party had 
done and suffered to bring about this result. He told 
us what they had undergone in their feelings and 
reputations, in their social and private relations, in 
public attacks and persecutings from city to city — 
how they had been between the parties as between 



. BUFFALO CONVENTION, 1848 159 

the upper and nether mill-stone; but now the time 
was come for them to deliver up their beloved organ- 
ization, for which they had sacrificed so much, to 
sacrifice their favorite candidate to whom they were 
bound by strong and increasing attachment. There 
was hardly a dry eye among the Liberty party men 
in that house. He ended by moving the unanimous 
nomination of Martin Van Buren. This was seconded 
by Mr. Lewis of Ohio, in an eloquent and touching 
speech, and was carried by acclamation, without one 
dissenting or doubtful voice. 

Having settled the question of the Presidency, we 
proceeded to the Vice-Presidency. It was understood 
that as the candidate for the Presidency was a Demo- 
crat, the candidate for the Vice-Presidency should be 
a Whig. This shut out Mr. Hale, and his friends made 
a second sacrifice by withdrawing him from the bal- 
lot for that office. As Mr. Van Buren was from the 
East, it was understood that the nomination for the 
Vice-Presidency should lie with the West, and we 
adjourned for an hour and a half to give the Western 
members opportunity to confer, with the understand- 
ing that Ohio, as the principal Western state, should 
ascertain and declare the opinions of the others. Well, 
fellow citizens, the members from Ohio met, and they 
were unanimous for Mr. Adams. They said he was 
the man, his was the name, for the day and the times. 
They wished to vindicate the memory of his father, 
who had contended almost single-handed on the floor 
of Congress for the right of petition. They knew in 
Mr. Adams the author of those legislative resolutions 
which, in spite of the reluctance of some, and the in- 
difference of many, have kept Massachusetts an- 
chored to the cause of Free Soil. They said they 



160 RICHARD HENRY DANA, JR. 

wished to show what they called (I do not use the 
term) the cotton Whigs of Massachusetts that they 
appreciated, at the West, the labors of Mr. Adams. 
The other states consulted, Indiana, Illinois, Michi- 
gan, Wisconsin, and Iowa, and they were determined 
upon Mr. Adams. So were the Pennsylvanians, six 
and sixty good men and true. A committee from the 
Ohio delegation united upon Mr. Adams. I saw him 
immediately afterwards. He was as much affected as 
surprised by the announcement. He told them it 
would not do; that the understanding was it should 
be a Western candidate. No, sir, answered these 
whole-souled men of the West, the understanding was 
that it should be a Western nomination ! Mr. Adams 
told them he would have nothing to say about it, that 
he would refer it entirely to the Massachusetts dele- 
gation, and asked them to come to us for an answer. 
At his request, Mr. Phillips called us together and 
stated to us his position. He desired Mr. Phillips to 
say to us that if for any reason we thought it more ex- 
pedient that the nominee should be a Western man, 
we should say so to the Ohio gentlemen, and suggested 
to us that although these gentlemen might have an 
inclination towards him at Buffalo, their constituents 
at home might feel differently. He also suggested a 
loss of influence to himself and others who stood like 
him, at home. 

We considered these things, but we found that the 
current of feeling had set towards Mr. Adams in a 
manner that was irresistible. We therefore told the 
Ohio gentlemen that we should not advocate the 
claims of Mr. Adams, nor act for him, nor do any- 
thing about it, but leave the matter entirely with 
them; yet, if they chose to come to Massachusetts 



BUFFALO CONVENTION, 1848 161 

for their candidate, and to take Mr. Adams, we were 
much obliged to them. 

When we met, after the adjournment, a venerable 
gentleman from Ohio, with gray locks, rose and said 
he had a word to say for Ohio and the West. He told 
us that they were agreed to nominate Charles Francis 
Adams of Massachusetts! Never in my life have I 
heard such an acclamation as burst from that as- 
sembly ! We think we know something about enthu- 
siasm; but we know nothing about it, here. You 
should see those Western men spring upon the benches, 
on the tops of the railings, and throw their hats into 
the air, ay, to the ceiling's top! For our work was 
done! We had adopted our platform unanimously, 
and nominated our candidates unanimously. Our 
nominations were made known to the mass conven- 
tion in the tent, and there they were received with no 
less unanimity and enthusiasm. We heard their shout- 
ings, and they heard our shoutings, and for a time 
it seemed as though the whole city of Buffalo was 
going up with one common acclamation. 

This great Convention adjourned. But I should 
do injustice to the spirit that prevailed there, did I 
not tell you that every morning's sun at Buffalo, as 
it rose, saw this vast assembly met for offices of prayer 
and praise. And when we adjourned on Thursday 
night, it was to meet again on Friday morning to 
unite in a common thanksgiving to the Disposer of 
all events, who had enabled us to come to this wise 
and harmonious conclusion. There is not a spot that 
the sun shines upon where these events could have 
happened but in the free states of North America; 
where so many thousand men, of different political 
parties, could have met in one place, organized a 



162 RICHARD HENRY DANA, JR. 

representative, deliberative assembly, remained in 
session three days, adopted a complete set of po- 
litical principles, and their candidates, with entire 
unanimity, and dispersed without a single unpleasant 
occurrence, and all without the aid of the slightest 
civil force. If there is a man who doubts the capa- 
city of the Anglo-Saxon race of North America for 
self-government, he should have been at Buffalo and 
learned this lesson. 

When I say that all our proceedings were unani- 
mous, I must allude to a dissatisfaction that existed 
in one quarter, — I mean among the Taylor and Cass 
newspapers. They could not understand it! It was 
past all comprehension! All their hopes and our ap- 
prehensions were falsified, and this incredible work 
was done before their eyes. As soon as they recovered 
from their surprise, they began to ask, — What charm, 
what incantations, and what mighty magic, — what 
medicines potent o'er the blood, had brought us to 
this state? And they gathered up their suspicions and 
misgivings and put them in shape, entitling the com- 
pound "The way it was done." Now, Mr. President, 
and gentlemen, there was a secret about this business. 
It is this: There was a principle at the bottom of it. 
Nothing else could have insured this result, in the 
nature of things and the nature of men. This only is 
the magic that we used! This, Messrs. Editors, was 
"the way it was done!" This it is, Mr. Winthrop, 
that maketh men to be of one mind in an house ! 

This vast assembly of intelligent, earnest men has 
dispersed. Where are they now? They are beside our 
rock-bound or our sandy coast; along the hills and 
valleys, and in the cities and towns of New England. 
They are at the South, by the banks of the Potomac 



BUFF.\LO COX\'EXTION, 1848 163 

and the Shenandoah; in the cities and villages of the 
great West, beyond the Falls of St. Anthony and the 
Sault Sainte Marie. They are beside the domestic 
hearths and domestic altars of an American people. 
And with such advocates, such missionaries, such evan- 
gelists, sooner or later, we cannot but succeed. I thank 
you for having permitted me, by your votes, to take 
a part in this Convention. It is something that a 
man may remember for life, and his children after him. 
But my duty for this evening is performed. If the 
Presidency were our ultimate object, he should see 
the expediency of a choice between two evils. But the 
Presidency is only one of the means to an end. The 
end we aim at is the ultimate success of the Free Soil 
system. To insure this, we must have an organized 
demonstration of public sentiment, a means of syste- 
matic, continuous, certain, popular action. Never has 
there been a time, in the history of this country, when 
each man's vote will tell so much as now. Those who 
understand that president-making is the ultimate ob- 
ject of parties, think we are mad in voting for a third 
candidate; but those who see that the end is the ulti- 
mate success of a system, must see that we are taking 
the only course that leads to it. It is not for us who 
are putting on our harness to boast ourselves as those 
who put it off. We have a duty to perform. Success 
in this presidential campaign is not our motive. It 
is only one of our objects, one of the means to our 
end. When and in what we shall succeed, we cannot 
know now; but of this we feel assured — our cause 
is just — our union is perfect. 



VIII 
THE GREAT GRAVITATION MEETING 

[This parody on the Fugitive Slave Law for the "preserva- 
tion" of the United States Constitution ("gravitation") with 
its slavery compromises, was written by Mr. Dana and pub- 
lished November 21, 1851, about fourteen months after the 
passage of the law.^ 

Mr. Dana, and men of his way of thinking, did not object to 
a fair and just fugitive slave law under the United States Con- 
stitution as it then was. This is clearly shown in Mr. Dana's 
Manchester, New Hampshire, speech of February 11, 1861, urging 
every reasonable conciliation with the Southern states just as 
some had seceded and others were in doubt, and before any 
act of war. What he did object to was the iniquitous form of 
this particular Fugitive Slave Law, which antagonized almost 
every principle of legal procedure established to secure justice. 

There are many provisions in this law that are bad enough; such 
as that the number of commissioners to enforce this law should be 
enlarged; that they should "hear and determine" such cases 
"in a summary manner"; that their fee should be ten dollars if 
they decided for the slavery of the fugitive and only five dollars 
if they decided in favor of freedom; that they had a right to sum- 
mon a posse comitatus of all citizens to aid, which all "good citi- 
zens" are commanded to obey; that any marshal who shall re- 
fuse to act shall be subject to a fine of one thousand dollars to the 
use of the claimant of the supposed slave; that "should such 
fugitive escape, with or without the assent of such marshal or 
his deputy, such marshal shall be liable on his official bond . . . 
for the benefit of such claimant for the full value of the service 
or labor of said fugitive"; that any attempt at rescue should be 

I Fugitive Slave Law, approved by President Fillmore September 
18, 1850. 



THE GREAT GRAVITATION MEETING 165 

punished by a fine not exceeding one thousand dollars and im- 
prisonment not exceeding six months ; that after the fugitive was 
decreed to the claimant, he could "use such reasonable force and 
restraint as may be necessary"; and that after such a decree the 
United States ofl5cers, in case a rescue is feared, should remove 
the fugitive at the expense of the government to the state whence 
the fugitive had fled. 

These and other unusual provisions for regaining property 
would have been comparatively harmless in and of themselves, 
were it not for the fact that the whole proceeding was based on a 
mere affidavit of a claimant or his agent or attorney, made before 
any officer authorized to administer oaths in the state or terri- 
tory from which the fugitive was claimed to have escaped. This 
officer was not obliged to go back of the affidavit and find for 
himself the truth of the statements. In a small country town, 
he might be aware of the facts, did he and the claimant and the 
fugitive slave all live there ; but if at a distance from the home of 
the claimant or if in a busy city, with a large slave mart, the 
ofiicer's whole knowledge would be based on this affidavit. The 
fugitive would, of course, not be present, or have any one to 
represent him, and he would not even be notified of the pro- 
ceedings. 

But the worst is yet to come. The officer makes up a record, 
based on this ex parte affidavit, and by Section 10, this record, 
in every state of the Union, is made "full and conclusive evi- 
dence of the fact of escape, and that service or labor of the per- 
son escaping is due to the party in such record mentioned." Not 
only was there no trial by jury, but there was no trial at all. The 
commissioner was bound by this record, even if he should have 
reasonable doubts as to the truth of the facts contained in it; 
and lastly, "in no trial ^or hearing under this act shall the testi- 
mony of such alleged fugitive be admitted in evidence." Dear 
Reader, please note the word "alleged." It does not mean that 
after the fugitive is adjudged to the claimant he cannot testify. 
It is only necessary to "allege" that a man is a fugitive, and in 
no proceeding can he testify as to whether he is or ever was a 
slave, or a fugitive, or as to his identity. As Mr. Rhodes points 



166 RICHARD HENRY DANA, JR. 

out in his history,^ "The mere statement of the provisions of this 
law is its condemnation"; and he shows how far more just was 
the slave law of ancient Rome, which presumed a man to be free 
until he was proved a slave. A colored man, by name Adam 
Gibson, was, by this " summary process," actually condemned 
to slavery and delivered to a slave owner, a Mr. William Knight, 
under mistake. He would never have seen liberty again had 
it not happened that Mr. Knight was an honorable man, who 
acknowledged the mistake and set Gibson free. 

To feel the horrors of this law, let us suppose a beautiful 
woman of white race, but of dark complexion, who is, by force of 
circumstances, let us say, travelling where she is not well known, 
perhaps in the southern part of the state of Ohio. Some rascal, 
calling himself a claimant or the agent or attorney of a claim- 
ant, could swear out an affidavit across the river in Kentucky 
before any officer allowed to administer oaths, and get a 
record describing her. Armed with this, he could either take her 
himself, or employ United States marshals, who dare not refuse 
under heavy penalties, to take her before a United States com- 
missioner, who, in his turn, would be precluded by the record, 
and she, the "alleged" fugitive, could not say a word on her own 
behalf. Her captor, when she was decreed to him, could take 
her by "such force and restraint as may be necessary," and all 
would be done in "a summary manner." 

In Mr. Dana's journal, ^ he tells how he had to advise a free 
colored man, legally free, but who had once been a slave, and 
who had heard his former master was inquiring as to his where- 
abouts, that though a free man he had no chance, that there was 
no way for him, if his old master had a record obtained some- 
where in the South, to prove his freedom, nor could any one 
else prove it for him. No wonder that Mr. Dana, who rarely 
used strong language, said, "People will never see the damnable 
character of the tenth section of that act until a few atrocious 
cases shall have arisen." 

This gravitation parody was an attempt to make people see 

^ Rhodes's History of the United States, vol. i, p. 186. 
2 Biography of R. H. Dana, Jr., vol. i, pp. 287-288. 



THE GREAT GRAVITATION MEETING 167 

it. There had been an answer made to the injustice of the "sum- 
mary" proceedings of the Fugitive Slave Law. The answer 
was that the fugitive slave, when carried back to the slave state, 
might there have a trial by jury as to his status; but what would 
that trial be worth where, by the law of every slave state, he was 
unable to testify in court, if he had even a trace of negro blood 
in his veins, even supposing that he was in reality free, to say 
nothing of his disabilities as a supposed slave?] 

Great Gravitation Meeting 

AT 

FANEUIL HALL! ! 

WEBSTER I CHOATEJ CASS! AND HAIXETTt 

GREAT ENTHUSIASM! 

[Specially Reported for the Tribune.] 
[Not by Telegraph.] 

Boston, Thursday, Nov. 21. 

The long-expected meeting to defend and preserve 
tlie Law of Gravitation came off last evening, and 
more than fulfilled the expectations of its friends. 
The hall was crowded with the anxious but resolute 
friends of the threatened and periled law, and the 
utmost unanimity and enthusiasm prevailed. 

The Hon. Upland Staple was called to the Chair, 
and twelve vice-presidents were chosen, among whom, 
were many of our most prominent merchants and 
lawyers. The names of Spinning Jenny, Esq., S. 
Island Cotton, Esq., Hon. Rice Fields, Hon. Increase 
Profit, and Retained Power, Esq., are a sufiicient in- 
dication of the character and standing of the officers 
of the meeting. 

The Hon. U. Staple, on taking the chair, expressed 
his gratification at being selected to take so promi- 
nent a part in a meeting in this consecrated spot, 



168 RICHARD HENRY DANA, JR. 

called to preserve from threatened destruction a great 
and vital law of the universe, a law which the recent 
act of Congress was intended to preserve. This act, 
so just and necessary, he said, had been the cause of 
a fanatical violence, dangerous to the best interests 
of trade, manufactures, industry, and public order — 
an opposition which it was the intention of this meet- 
ing to put down, effectually and forever! (Great ap- 
plause.) For this purpose, no means had been left 
untried. The names of those merchants, lawyers, and 
physicians who had signed the call would be pub- 
lished, and he assured the meeting that the names 
of those who had declined to sign it would be pub- 
lished also! (Cheers and cries of '^that's right! that's 
the talk!") Without further comment, he would in- 
troduce to the meeting the Great Expounder of the 
Law of Gravitation. 

Hon. Daniel Webster then came forward, and was 
received with deafening shouts and cheers. As soon 
as silence could be obtained, he spoke as follows: — 

I am for Gravitation! (Applause.) I have always 
been for Gravitation! (Renewed applause.) I always 
shall be for Gravitation ! Under the law of Gravita- 
tion was I born, under the law of Gravitation have I 
lived, and by Divine permission, and the leave of cer- 
tain of our fanatical friends, I expect to die and be 
buried under the law of Gravitation! (Tremendous 
sensation.) 

No small portion of my life has been devoted — 
humbly and inconspicuously I admit — to the ex- 
pounding of this law. (Here the speaker was inter- 
rupted by nine cheers for the Great Expounder.) 
Without Gravitation, what would be our condition? 
What would move the loom or the plough.? Where 



THE GREAT GRAVITATION MEETING 169 

would be your commerce, your railroads, your fac- 
tories, your water-powers, your steam-powers — 
those great and invaluable privileges for which our 
ancestors fought and died? Not only would these be 
lost, but life itself, if held at all, would, in my judg- 
ment, not be worth the holding. (Sensation.) 

Now, gentlemen, I hold it to be one of the implied 
powers of Congress to pass laws for the preservation 
of gravitation. Fanatics may rave and strict con- 
structionists may quibble, but no man whose opin- 
ion is worth considering doubts the existence of this 
right. Then, gentlemen, if the end is allowable, the 
means to the end are allowable. This, I think, is not 
new or doubtful logic. (Laughter.) Congress has 
just passed a law making use of certain of these means 
to this end. This is the whole of it! And yet certain 
socialists and fanatics, and school-boys and school- 
girls (laughter) would persuade us that here is some- 
thing unconstitutional! Have we five senses, Mr. 
President, or what has happened to us.^^ 

Well, fellow citizens, what is this act, — this lawful 
means to a lawful and transcendently important end? 
It is just this. It provides that whenever, in the opin- 
ion of any person living south of the equator, the 
gravitation or equilibrium of the earth shall be in dan- 
ger, he may come to any of our states and take from 
them any person or persons, who or whose ancestors 
were born or have lived in the Southern hemisphere, 
and carry them to the place which they or their an- 
cestors left, at the expense of our government. Can 
any act of legislation be more simple, more just, or 
more clearly constitutional? If they can, my short 
experience and limited capacity do not permit me to 
see it. I congratulate those who can. (Laughter.) 



170 RICHARD HENRY DANA, JR. 

I grant that no such law exists in the eastern hem- 
isphere. They do not think such a law necessary. 
I differ from the eastern hemisphere. — (Tremen- 
dous applause.) I think such a law necessary. In 
minor matters, I would not reenact the laws of God. 
I would trust to the laws of climate, scenery, and 
physical geography. But in a matter of such infinite 
moment, I would resort to human aids, and endeavor 
to cooperate with the laws of the moral and physical 
universe. 

In classical times, Mr. President, there was a set 
of men known as the capsizores mundarum. Their 
object was to overturn the universe and reconstruct 
it according to their own theories. This class is not 
extinct in our own day. The opponents of this act 
of Congress are capsizores mundarum. They seek to 
disturb the order of the universe, to bring industry 
to a dead stand, to throw the earth out of its orbit, 
and send it into the blackness of darkness forever! 
(Great sensation.) Let all discussion of this act be 
discouraged, and put down, as we value our lives and 
the lives of our children to the latest posterity. Let 
all seditious attempts, under the pretense of testing 
its validity in the courts, be put down, peaceably if 
we may, but, if we must, — then — otherwise! (Tre- 
mendous applause.) 

It is said, I am told, that the act takes away the 
trial by jury. I apprehend that it does no such thing. 
(Hear, hear.) The chief facts to be tried are, whether 
the person seized is or is not a native of the Southern 
hemisphere, whether the person who seizes him is 
himself from the Southern hemisphere, and whether 
Gravitation is in fact in danger. Now there is not a 
word in the act to prohibit the trial of these questions 



THE GREAT GRAVITATION MEETING 171 

by a jury. (Hear, hear.) It is true, the trial is not 
to be had here. But it may be had elsewhere. And 
what objection is there to the party having his trial 
in the place from which he came, his birthplace, his 
original home, and the home of both the parties to 
thesuit.'^ I can see none. There are objections founded 
on facts, and objections founded on pretense. I take 
this to be one of the latter. (Applause.) 

But, fellow citizens, it is high time that I gave way 
for those whose greater powers will enable them to 
throw more light on this subject. (Go on! go on! — 
Cheers.) No, gentlemen, my task is done. I end as I 
began. This act of Congress is the law of the land. 
In my judgment, every good citizen will acquiesce 
in it. Those who seek to disturb or repeal it, desire to 
throw the earth out of its orbit and unmake the uni- 
verse. (Tremendous sensation.) I am for Gravitation, 
at all times, under all circumstances, without respect to 
latitude or longitude, without compromise ! (Cheers.) 
It must be preserved by individual efforts, by each 
man as a unit. I am a unit! A Massachusetts unit. 
A Faneuil Hall unit. A Marshfield unit. (Cheers.) 
As for me, my part is taken. Standing here in Faneuil 
Hall, with Bunker Hill before me, with Lexington and 
Concord on my left hand, and the Rock of Plymouth 
on my right, I give my heart and hand for this law. 
(Tremendous and long-continued applause.) 

The Hon. Rufus Choate sprang to the platform, 
and was greeted as his unbounded popularity de- 
serves. It is impossible to give more than a faint 
sketch of the brilliancy of his speech. It is reported 
for us as follows : — 

What, fellow citizens.^ What is it that has filled old 
Faneuil to the brim to-night — drawn together the 



172 RICHARD HENRY DANA, JR. 

thousands of Boston into this concentration of anx- 
ious energy? What is it that gives this one pulsation 
to this moving mass? What has called you, Mr. Presi- 
dent — what has called us all from our firesides, and 
left a thousand lonely and saddened hearths in our 
home-loving, curfew-keeping city? (Cheer.) 

Nothing, nothing but to give our aid and counte- 
nance to that great, vital principle, now in its first 
peril, since the morning stars sang together — the 
law of Gravitation! The sight of these thousands 
wending their way, with the faith and devotion of 
second infancy, to the cradle of their Liberties 
(Cheers), and to aid in upholding the law of the 
Universe, is a spectacle more noble than fleets of 
mightiest admirals seen beneath the lifted cloud of 
battle — more sublime than serried ranks of soldiers 
moving, by tens of thousands, to the music of an un- 
just glory ! (Cheers.) 

The Law of Gravitation ! What madness — what 
worse than Worcester or McLean asylum madness — 
to dream of its suspension, to entertain the flitting 
shadow of thought of its repeal? Why, let but the 
last, lingering, lifeless leaf of a decayed December 
foliage fall from its parent trunk against the law of 
Gravitation, and there were a discord through the 
universe not to be healed until the sea shall give up 
its dead ! (Tremendous applause.) In the new Heaven 
and new earth of the Apocalyptic vision, there may 
be a new law of Gravitation, or no Gravitation at all; 
but I respectfully suggest a doubt, a query, whether 
we had best begin the experiment in the Eighth Dis- 
trict quite yet. (Laughter and cheering.) 

Congress has passed a law for the sustaining of this 
principle which has worked pretty well probably for 



THE GREAT GRAVITATION MEETING 173 

some myriads of centuries; and our friends are in 
ecstasies of indignation. All their hopes of confusion, 
their brightest visions of disorder are dispelled in a 
moment. What else can Congress do.^^ Congress can- 
not move the mountains, or take the seas in its hand. 
It cannot change Mt. Washington for Teneriffe, or 
the Mississippi for the Ayacucho. Man, man is the 
great locomotive ! If the mountain cannot go to Ma- 
homet, the prophet must go to the mountain. Man is 
the shifting ballast in the voyage of our planet through 
infinite space. (Cheers.) If, then, man must be made 
to preserve the equilibrium of the globe, and the 
Southern hemisphere has notoriously less land than 
the Northern, what more just, more humane than 
to send back, at our own expense, the exiles of the 
Sunny South.? Instead of shouldering our muskets 
and crying our eyes out over this law, we should shed 
tears of gratitude at the humanity and equity of its 
beneficent provisions. Even if, by mistake, a North- 
ern man should be taken, do not half the active young 
men of New England make themselves new homes 
the world over.? Shall we pity the victim of this law 
as he floats over the broad Atlantic, with the stars 
and stripes above him, as he is breathed along to his 
new home by the gentle trade-winds of the tropics, — 
as the evening breezes from broad Brazil steal over 
the moonlit sea to print the first kiss of welcome on 
his heated forehead! Is he sent to poverty when he 
gathers diamonds like dewdrops in the genial Bra- 
zilian sands.? Is he sent to a prison when he throws 
the lasso and bounds over the broad savannahs of 
the Amazon and Orinoke? Is it a dungeon he is sunk 
into while he mounts the Andes, and soars above the 
clouds, the playmate of the vulture and the condor? 



174 RICHARD HENRY DANA, JR. 

Is he driven to barbarism as he sips his coffee under 
the piazza of the Castilian? Is he an outcast when the 
dark eyes of sehoritas flash welcome from their half- 
uplifted mantles? Away with this mock philanthropy, 
which weeps over the woes of a reinstated exile, and 
can find no wrongs in the world to redress but his ! 

But, forsooth, his Southern home is to be closed 
against him until a jury has said he shall go! Did he 
wait for a jury when he came away? (Laughter.) By 
and by it will be unconstitutional for a railroad car 
or a ferry-boat to start without a jury. But Congress 
would willingly gratify their idiosyncrasy, their in- 
fatuation, for twelve men, if there were the least need 
of it in the world. 

It has been asked to-night, and no man can answer 
it, why not try the question of nativity and removal 
at the place where the party was born and from 
which he came? And there he may have his trial, 
and welcome. There the jury may be empaneled of 
his own countrymen, sworn by the bell, book, and 
candle of his own religion, and his is the verdict of a 
South American instead of a North American panel. 
But my word for it, not one in ten of them will ask 
for their suit. If it takes twelve men to prevent their 
going back, it will take a thousand to drive them 
here again. (Applause and laughter.) 

But why waste words on this weak and wicked 
attempt to obstruct the preservation of the earth's 
equilibrium, the gravitation of all matter; to bring 
Chaos back again? Our principle is the principle 
which holds the elements together, our strength is 
the arm of the universal law ! 

The distinguished orator sank to his seat amid 
thunders of applause. 



, THE GREAT GRAVITATION MEETING 175 

Mr. Webster then again came forward, and said 
he would read a letter from an eminent patriot and 
personal friend; a man whom Massachusetts had al- 
ways delighted to honor, the Hon. Lewis Cass. (Three 
cheers for Lewis Cass !) 

Detroit, Tuesday, Nov. 12. 

My dear Friend: — Circumstances prevent my attending 
your great Gravitation Meeting in Boston. — Deeply as I re- 
gret the causes which have made these meetings necessary, I 
rejoice in the spirit of devotion to the laws of God and nature 
which these causes have developed. When we reflect on the con- 
sequences of a repeal or supervision of the law of Gravitation 
(which a repeal or supervision of the late act of Congress of course 
involves); when we consider the noise and confusion such an 
event would doubtless create in the physical world, we hardly 
know whether most to wonder at or abhor the practices of those 
who put us in such peril. 

If Gravitation is suspended, who can doubt that commerce 
is suspended also ? How, then, can the exiles of Hungary flee 
from the butcheries of Haynau to the only land in the world 
where free principles are consistently carried out, to all classes, 
with no other distinction than that of color? How can the Aus- 
trian Ambassador be recalled, or a mission of encouragement 
be dispatched to down-trodden Hungary? The fund for the 
Michigan Canal and for our lighthouses will have been wasted. 
If the results can be traced to our remissness, the cause of free 
principles will be retarded in Europe. Nor are these the only 
consequences, for there is great reason to apprehend a general 
derangement of the physical laws of the earth, resulting in the 
most serious consequences not only to our own country but to 
the world, compared with which the banishment of the Court and 
the family of Louis Philippe, and the defeat of the Democracy 
in 1848, are matters of trifling moment. 

Being called upon for an exposition of my Nicholson Letter 
to the Nashville Convention, as to the meaning of which there 
seems to be a strange misapprehension between the two parties 



176 RICHARD HENRY DANA, JR. 

in that body, I am obliged to terminate my communication 
earlier than I otherwise would have done. I beg you to present 
my best wishes to the people of Massachusetts, whose best inter- 
ests I have so long but so unworthily endeavored to subserve, 
and believe me. 

Yours truly, Lewis Cass. 

To Hon. Daniel Webster. 

This letter was received with warm demonstra- 
tions of applause. 

Hon. B. F. Hallett next addressed the meeting. 
His remarks were quite extended. At the close of 
his speech he paid a glowing tribute to the memory 
of Sir Isaac Newton, who, he had been told, was a 
distinguished advocate and expounder of Gravitation 
in England, against the efforts of an insolent landed 
aristocracy and overgrown monied corporations. He 
concluded by moving that a subscription be raised, 
upon the spot, to procure portraits of Sir Isaac New- 
ton, Senator Foote of Mississippi, and the principal 
orator of the evening, to be hung in Faneuil Hall, 
surmounted by the American Eagle, and by a streamer 
hanging from the Eagle's mouth, on which should be 
printed, in golden letters, the words "Gravitation 
and Equilibrium." 

This proposal was received with applause, and we 
rejoice to add that the requisite subscription was 
made on the spot. 

The following preamble and resolutions were then 
adopted: — 

Whereas, We regard the interests of the cotton manufactures, 
the shoe and leather trade, the freighting trade to the South and 
to Europe, the making of negro cloths, machinery and firearms, 
as the paramount interests and highest questions for a great 



THE GREAT GRAVITATION MEETING 177 

and free people to entertain, as the causes of the formation of 
our Union and of the Revohition itself, and see that these must 
be destroyed by any shock to the law of gravitation, or to any 
law of Congress sustaining the law of gravitation; and 

Whereas, The agricultural and farming classes, and all persons 
living beyond the reach of tide-water, have always been the 
opponents of gravitation from the first; and 

Whereas, It rests with the merchants, traders, and manufac- 
tures of the country, living within reach of tide-waters, to sus- 
tain the law of gravitation ; — therefore 

Resolved, That the late act of Congress shall be regarded as 
a part of the law of nations, a compact among the families of 
men, sacred, unalterable and irrepealable. 

Resolved, That whoever opposes or seeks to repeal or mate- 
rially alter that law, seeks to destroy the law of gravitation and 
the equilibrium of the earth, is a foe to the order of the universe 
and the happiness and prosperity of the human race. 

Resolved, That disregarding all former party ties, we will vote 
for no man, for any State or National office, who is known or 
suspected to be opposed to the late act of Congress; but will 
vote for those men only, of whatever party, who are pledged to 
the policy of preserving it inviolate to us and our posterity. 

The meeting adjourned to meet on 'Change at ten 
o'clock, to-morrow. 



IX 

ARGUMENT ON BEHALF OF CHARLES G. 
DAVIS, ESQ., CHARGED WITH AIDING 
AND ABETTING IN THE ESCAPE OF A 
FUGITIVE SLAVE CALLED SHADRACH 

[This argument is of especial historical interest, as it exhibits 
the great power of patronage and official position, as well as social 
prestige, used to deter the defense of fugitive slaves. Shadrach 
was seized as a fugitive in Boston, February 15, 1851, taken to 
court for a hearing, and escaped the same day. Mr. Davis, who 
had been one of the counsel for Shadrach, was accused of aiding 
in tliis escape. The case against Mr. Davis was tried before the 
Hon. B. F. Hallett, United States Commissioner, on February 
20 to 24. On February 26, 1851, Mr. Davis was discharged by 
the Commissioner, who found no case proven against him.] 

May it please your Honor : — 

Certainly, Mr. Commissioner, we are assembled 
here, this morning, under extraordinary circumstances. 
I am not aware that since the foundations of our 
institutions were laid, since we became an independ- 
ent people, since the Commonwealth of Massachu- 
setts had an independent existence, — I am not aware 
that a case similar to this has once arisen. I do not 
know that ever before in our history a judicial tribu- 
nal has sat, even for a preliminary hearing, upon a 
gentleman of education, a counselor of the law, sworn 
doubly, as a Justice of the Peace and as a counselor 
in all the courts, to sustain the Constitution of the 
United States and the laws made in pursuance thereof. 



ARGUMENT FOR CHARLES G. DAVIS 179 

— a gentleman of property, family, friends, reputation, 
who has more at stake in the preservation of these 
institutions than nine in ten of those who charge him 
with this crime; — who stands charged with an of- 
fense (in the construction now attempted to be put 
upon the statute) of a treasonable character, a trea- 
sonable misdemeanor, an attempt to rescue a person 
from the law by force, an attempt to set up violence 
against the law of the land. 

Therefore it is that this trial attracts this unusual 
interest. It is not that, so far as this defendant is 
concerned, the question whether he be bound over 
here, or whether the District Attorney takes his case 
directly to the Grand Jury, can make the slightest 
difference in the world; but because the decision of 
this tribunal, though only preliminary, will have 
great effect upon the community, and will be carried 
throughout the United States. It is because of the 
political weight attached to it, that such anxiety is 
felt for the result. For the simple rescue of a prisoner 
out of the hands of an officer is a thing that occurs 
in our streets not very unfrequently, and often in 
other cities. It might have occurred upstairs, and 
not have attracted a moment's attention. 

Who, Mr. Commissioner, is the defendant at the 
bar.f* I have said that he is a Justice of the Peace, 
sworn to sustain the laws, a counselor of this court 
and of all the courts of the United States in this State, 
sworn doubly to sustain the laws. He is a gentleman 
of property and education, whose professional repu- 
tation and emolument depend upon sustaining law 
against force; a man whose ancestors, of the ancient 
Pilgrim stock of Plymouth, are among those who laid 
the foundations of the institutions that we enjoy. He 



180 RICHARD HENRY DANA, JR. 

has at this moment so much interest in the way of 
personal pride, historical recollections, property, in 
family, reputation, honor, and emolument in these 
courts — so much at stake as to render it impossible 
to believe, except on the strongest confirmation, that 
he should be guilty of the offense charged against 
him at this moment. 

The charge against the defendant involves the 
meanness of instigating others to an act he dares not 
commit himself, of putting forward obscure and op- 
pressed men, to dare the dangers and bear the pen- 
alties from which he screens himself; meantime hold- 
ing up his hand and swearing to obey the laws of his 
country which he is urging others forward to violate. 

Since, then, my friend has done me the honor to 
ask me to appear for him before this tribunal, from 
among others so much better qualified, I feel that I 
am placed in circumstances calling for some allowance, 
some liberty for feeling and expression. We think 
ourselves happy that in this state trial, this political 
state trial, we appear before one who has been known 
through his whole life as not only the advocate of the 
largest liberty, but the asserter and maintainer of 
the largest liberty of speech and action, at the bar, 
in the press, and in the forum, carrying those ideas 
to an extent to which, I confess, with my comparative 
conservatism, I have not always seen my way clear to 
follow. Therefore, I shall look for as large a liberty 
as the case will allow me, in addressing myself to this 
court; in bringing forward all considerations, in sug- 
gesting all possible motives, in commenting upon all 
the circumstances that lie about this cause. At the 
same time I shall expect from the person who sits 
clothed with the authority of an executive whose will 



ARGUMENT FOR CHARLES G. DAVIS 181 

is as powerful as that of any sovereign in Christendom, 
except the Czar of the Russias — I shall expect from 
him no unnecessary interruptions, no extraordinary 
appeals, no traveling out of the usual course of a 
simple judicial proceeding. 

Why is it that the defendant stands here at this 
bar a prisoner? How is this extraordinary spectacle 
to be accounted for? I beg leave to submit that the 
whole history is simply this. There has been a law 
passed in the year 1850, by the Congress of the United 
States, which subjects certain persons, if they be fugi- 
tive slaves, or whether they be or not, subjects them 
to be arrested and brought into court, to have the 
question of their liberty and that of their seed forever, 
tried by a so-called judicial tribunal. Those persons 
are mostly poor. They belong to an oppressed class. 
They are the poor plebeians, while we are the patri- 
cians of our community. They are of all the people 
in the world those who most need the protection of 
courts of justice. I think the court will agree with me 
that if there is a single duty within the range of the 
duties of a counselor of this court which it is honor- 
able for him to perform, and in the performance of 
which he ought to have the encouragement of the 
court, it is when he comes forward voluntarily to 
offer his services for a man arrested as a fugitive slave. 
Therefore it is that I think it somewhat unfortunate 
the District Attorney should have thought it neces- 
sary to arrest counsel. If there be a person against 
whom no intimidation should be used, it is the coun- 
sel for a poor, unprotected fugitive from captivity. — 
The question is, whether a man and his posterity for- 
ever, the fruit of his body, shall be slave or free. It 
is to be decided on legal principles. If there is a case 



182 RICHARD HENRY DANA, JR. 

in the world that calls for legal knowledge and abil- 
ity, — that calls for counselors to come in and labor 
without money or price, — it is a case like this. I 
think it a monstrous thing, unless it be a case beyond 
doubt, that counsel should have been selected to be 
proceeded against in this manner. 

I take the facts to be these: Mr. Davis, being a 
counselor of this court, and possessed of no small sym- 
pathy for persons in peril of their freedom, when it 
was known that a person claimed as a fugitive slave was 
arrested, and in a few hours, perhaps, to be sent into 
eternal servitude, Mr. Davis steps over to my office 
and suggests to me that we offer our services as coun- 
sel. He leaves his business, which is large, while five 
courts are in session in this building. He sits here that 
whole Saturday forenoon by the prisoner, to whom he 
is recommended by Mr. Morton. He is twice spoken of 
to Mr. Riley by the prisoner, as one of his counsel. 
He sits from eleven to two o'clock, absorbed in this 
case, his feelings necessarily excited (and I should be 
ashamed of him if they were not excited), but his in- 
tellectual powers devoted to the points of law in this 
case, and your Honor knows that the points are va- 
rious and new. 

By the courtesy of the marshal, the counsel were 
permitted to remain here, because the marshal had 
not yet determined where to keep his prisoner. They 
remained until the time for the prisoner's meal. When 
the business is over, they leave. Some one must go 
out first, and somebody must go out last. It is no- 
thing more nor less than the old rule of "The Devil 
take the hindermost." Mr. List leaves the court-room 
— Mr. Warren goes out. All the officers are to go 
to dinner, and the door is to be opened and closed 



ARGUMENT FOR CHARLES G. DAVIS 183 

each time. Dinner is to be brought in. Twenty times 
that door is to be opened. 

In the mean time about that door is collected a 
small number of persons of the same color with the 
person then at the bar, very likely, perhaps, to make 
a rescue, some advising against it, and some for it, 
with considerable excitement. Mr. Davis slides out 
of that passageway and goes to his office. Mr. Wright 
is prevented from going by the crowd. Not a blow is 
struck. Not the hair of a man's head is injured. The 
prisoner walks off with his friends, straight out of 
this Court House, and no more than twenty or thirty 
persons have done the deed. Three men outside of the 
door could have prevented the rescue. Mr. Riley did 
not suspect it. Mr. Warren did not suspect it. Mr. 
Homer did not suspect it. Mr. Wright did not sus- 
pect it. Nobody suspected it. The sudden action of 
a small body of men, unexpected, and only successful 
because unexpected, accomplished it. He is out of 
the reach of the officers in a moment, and there 's the 
end of the whole business. No premeditation! No 
plan! Counsel knowing nothing about it! Nobody 
suspecting it, and the whole thing over in one minute! 

But, may it please the Commissioner, the law is 
violated — the outrage is done. This is a case of great 
political importance, and the deputy marshal thinks 
it his duty (I think in rather an extraordinary man- 
ner), instantly, before any charge is made against him, 
before any official inquiry is started, to issue a long 
affidavit, sent post-haste to every newspaper, and 
hurried on to Washington, — Congress in session, — 
a delicate question there, — Northern and Southern 
men arrayed against each other. Then comes an 
alarm. Then the Executive shrieks out a proclamation. 



184 RICHARD HENRY DANA, JR. 

A standing army is to be ordered to Boston. All 
good citizens are to be commanded to sustain the laws. 
The country thinks that mob law is rioting in Boston 
— that we all go armed to the teeth. The chief magis- 
trate of fifteen millions of people must launch against 
us the thunders from his mighty hand. 

In the mean time, we poor, innocent citizens are 
just as quiet, just as peaceable, just as confident in 
our own laws, just as capable of taking care of our- 
selves on Saturday evening as on Friday morning. 
Only some frightened innocents, like the goose, the 
duck and the turkey in the fable, say the sky is fall- 
ing, and they must go and tell the king! 

But we can all see now that there was too much 
alarm. We begin already to feel the reaction. A state 
of things has been created over this country entirely 
unwarranted by the circumstances. And I trust that 
the Commissioner will be able to say to the country, 
say to His Excellency the President of the United 
States, say to the world, that nothing of this sort has 
occurred; that there has been no preconcerted ac- 
tion; that the marshal cleared his room, and every- 
body went out peaceably; that nobody expected the 
rescue; that there was no crowd in the court-room; 
but the blacks, feeling themselves oppressed and 
periled by this law, standing at that door, behind 
which their friend and companion is held a prisoner, 
rush in, almost without resistance, carry off their 
prisoner, and not a blow is struck, not a weapon drawn, 
not a man injured. That is the end of it. There is no 
need of standing armies in Boston! And, above all, 
we trust that the Commissioner will be able to say 
to the world, to the President, and to Congress, that 
this effort was the unpremeditated, irresistible im- 



ARGUMENT FOR CHARLES G. DAVIS 185 

pulse of a small body of men, acting under the sense 
and sight of oppression and impending horrid calam- 
ities, against the advice of some of their own number; 
and that no gentleman of education, no counselor 
of this court sworn to obey the law, has instigated 
these poor men to its overthrow. Massachusetts is 
not in a state of civil war, and her most valued citi- 
zens are not engaged in overturning the foundations 
of civil government. 

Why should the criminal proceedings of this day 
have taken place at all.^ What is the evidence? The 
learned district attorney thought proper to suggest 
to the Court that there was further evidence which 
might be presented in another stage of this proceed- 
ing. That, I am sure, fell with as little weight upon 
the mind of the Commissioner as it would if we, on 
the other hand, had said, as is the fact, that we have 
a large amount of evidence that might yet be pre- 
sented in behalf of Mr. Davis. This is not a game of 
brag! It is not upon evidence that is not here, but 
upon evidence that is here, that this case is to be de- 
cided. Here has been mortified pride, here has been 
fear, here has been the dread spectre of executive 
power, stalking across the scene, appalling the hearts 
and disabling the judgments of men. Excited men 
suspect everybody. Every person who ever attended 
a public meeting is suspected. A political party is to 
be put under the ban. There is nothing so rash as 
fear. There is nothing so indiscriminating as fear. 
There is nothing so cruel as fear, unless it be mortified 
pride — and here they both concurred. 

Instructions come from a distant executive power 
that knows nothing of the facts. And the fear of that 
power and patronage is the reason, may it please the 



186 RICHARD HENRY DANA, JR. 

Commissioner, why suddenly, on Saturday or Sunday, 
before the subject can be examined and the truth 
ascertained, a warrant is got out against a person of 
the character and position of Mr. Davis. But when 
we look at things in their natural light, when there is 
a calm investigation of the facts, I think the govern- 
ment will see and regret its rashness and delusion. 

I understand, may it please the Commissioner, that 
there is to be a great deal done on this case, of an 
unusual character. We have been threatened with 
the reading of newspapers; and public meetings, and 
political principles are to be charged as treasonable. 
Yes ! political considerations are brought to bear. We 
cannot tell what limit is to be put to this. And so, not 
knowing what is before me, with no ordinary rules of 
procedure to guide me, the Commissioner will allow me 
to try to anticipate the attacks as well as I can. For 
having had it intimated that the argument will not fol- 
low legal evidence, but extracts from newspapers — 

Mr. Lunt. That is very strong. I have offered 
you everything of that kind that I have to say. 

The Commissioner. The gentleman proposes to 
read, as part of his argument, an article from the news- 
papers. 

Mr. Dana. He proposes to read it as evidence, to 
affect the mind of the court on the facts. I cannot 
object to it now. When it is offered, I have no doubt 
it will be properly met by the Commissioner. 

I say, not knowing what is to come upon me, I must 
take a pretty wide margin. In that view of the case, 
it will not be improper if I state what I understand to 
be the true position of Mr. Davis, with reference to 
the principles involved in this case. 



ARGUMENT FOR CHARLES G. DAVIS 187 

May it please your Honor, we are not subjects of a 
monarchy, which has put laws upon us that we have 
no hand in making. I do not hesitate to say, here, 
that if the act of 1850 had been imposed upon us, a 
subject people, by a monarchy, we should have re- 
belled as one man. I do not hesitate to say that if 
this law had been imposed upon us as a province, by 
a mother country, without our participation in the 
act, we should have rebelled as one man. 

But we are a republic. We make our own laws. We 
choose our own lawgivers. We obey the laws we make 
and we make the laws we obey. This law was consti- 
tutionally passed, though not constitutional, we think, 
in its provisions. It is the law until repealed or ju- 
dicially abrogated. 

Who passed this law.? It was passed by the vote of 
the representative of our own city, whom we sent 
there by our own votes. It was advocated by our own 
senator. It was passed by the aid of Northern votes. 
Where is the remedy .^^ It strikes me that the state- 
ment of the case shows where the remedy is. It is in 
the hands of the people. It is not in standing behind 
and urging on poor men to put themselves in the can- 
non's mouth. It is political courage that is wanted. 
Courage shown in speech, through the pen, and 
through the ballot-box. 

But be it known that all I have said is on the idea 
that this is a repealable law. If we are to be told that 
this is a part of the organic law, sunk down deep into 
national compact, and never to be repealed, — then 
neither you nor I can answer for the consequences. 
But now we can say that it is nothing but an act, that 
may be repealed to-morrow. Take from us that great 
argument, and what can the defendant and myself 



188 RICHARD HENRY DANA, JR. 

do? What can the defendant say to discourage col- 
ored men from the use of force? You take from him 
his great means of influence. I never have been one 
of those, and I think the defendant has never been 
one of those, who would throw out all their strength 
in denunciations against Southern men born to their 
institution of slavery, and pass over those Northern 
men who volunteer to bring this state of things upon 
us. 

But as a citizen, within constitutional limits, ad- 
dressing his fellow citizens at Faneuil Hall (where I 
think we have still a right to go), discouraging his 
fellow citizens from violence, writing in the newspa- 
pers and arguing in the courts of law to the same pur- 
pose, saying to the poor trembling negro, "I will give 
you a habeas corpus! I will give you a writ of per- 
sonal replevin! I will aid in your defense! There is 
no need of violence!" That is the position of the de- 
fendant. If he held any other position, if the defend- 
ant had made up his mind that here was a case for 
revolution, that here was a case for civil war and 
bloodshed — if I know anything of the spirit of the 
defendant, he would have exhibited himself in a far 
different manner. He would have resigned his posi- 
tion as a counselor of this court, with all its profits 
and honors; he would put himself at the head, instead 
of urging on from behind a class of ignorant, excited 
men, against the execution of the laws. 

For he knows perfectly well — an educated man 
as he is, who has studied his logic and metaphysics, 
and who is not unfamiliar with the principles of the 
social system — that an intentional, forcible resistance 
to law is, in its nature, revolution. And I take it, no 
citizen has the right forcibly to violate the law, unless 



ARGUMENT FOR CHARLES G. DAVIS 189 

he is prepared for revolution. I know that these nice 
metaphysic rays, as Burke says, piercing into the dense 
medium of common life, are refracted and distorted 
from their course. But an educated man, with a dis- 
ciplined mind, knows that he has no right to encour- 
age others to forcible resistance, unless he is ready to 
take the risks of bringing upon the community all the 
consequences of civil war. We talk about a higher law 
on the subject of resistance to the law. And there is 
a higher law. But what is it.f^ It is the right to pas- 
sive submission to penalties, or, it is the active ulti- 
mate right of revolution. It is the right our fathers 
took to themselves, as an ultimate remedy for un- 
supportable evils. It means war and bloodshed. It 
is a case altogether out of law. I do not know a man 
educated to the law that takes any other ground. 

I suppose your Honor did not misapprehend my 
last remark and that no one did. When I said re- 
sistance to the law, I did not mean to include resist- 
ance for the purpose of raising a constitutional issue. 
If an unconstitutional tax is levied, you refuse to pay 
it and raise the constitutional question. This right 
seems to be lost sight of. Persons seem to think we 
are to obey statutes and not the Constitution. I un- 
derstand that the duty to the Constitution is above 
the duty to the statutes. And therefore I say, by re- 
sistance to the law, I mean combined, systematic, 
forcible resistance to the law for the purpose of over- 
coming all law, or a particular law in all cases; defying 
the government to arms, and not for the purpose of 
raising a constitutional issue. For this is within the 
power, nay, it is sometimes the duty of a citizen. I 
do not know a position in which a person does a greater 
good to his fellow citizens than when he does, as John 



190 RICHARD HENRY DANA, JR. 

Hampden did on the question of ship-money, raise, 
by refusal to obey, the constitutional issue. And in 
doing this, he ought to have the approbation of the 
courts and their ministers, and of every person true 
to the Constitution and the laws. 

At the same time that it is important to maintain 
all these principles, which are the principles of the 
defendant, I also think this is a season when we must 
be very careful that certain opposite doctrines are 
not carried too far. I think it is a time, this day, when 
it becomes a judicial tribunal to see to it that this 
extraordinary combination of executive power and 
patronage, this alarm and this anxiety at headquar- 
ters, does not lead to a violation of private rights and 
personal liberty. I think there is a pressure brought 
to bear against the free expression of popular opinion, 
against the exercise of private judgment — a pressure 
felt even in the courts of law, intimidating counsel, 
overawing witnesses, and making the defense of lib- 
erty a peril. There is the pressure of fear of political 
disfranchisement, of social ostracism, which weighs 
upon this community like a nightmare. We feel it 
everywhere. We know that we make sacrifices when 
we act in this cause. We feel that we suffer under 
it. And if this course is persevered in, I believe that 
if a man stands at that bar charged with being a fugi- 
tive slave, he will find it difficult to obtain counsel in 
this city of Boston, except from a small body of men 
peculiarly situated. 

I think that two years ago no man could have stood 
before this bar, with perpetual servitude impending 
over him, but almost the entire bar would have come 
forward for his defense. No man would have dared to 
decline. But because of this pressure of political and 



ARGUMENT FOR CHARLES G. DAVIS 191 

mercantile interests, it is said that Henry Long found 
it difficult to obtain counsel in New York. His friends 
sent to Boston to obtain an eminent man here, will- 
ing to brave public feeling by acting as a counselor 
in a case of slavery. I do believe that this danger is 
to be regarded. For there is, at times, as much ser- 
vility in democracies as in monarchies. I was struck 
with the remark made by the Earl of Carlisle, in his 
late letter, that there is in the United States an ab- 
solute submission to the supposed popular opinion 
of the hour, greater than he ever knew in any other 
country in the world. This is something in which no 
American can take pride. 

The history of democratic governments shows that 
they may be as arbitrary as any absolute monarchy. 
Athens and Paris have, under democratic forms, been 
the standing illustrations of tyranny and arbitrary 
rule the world over. Those are free governments in 
which there is a government of just laws, whether 
wrought out through a mixed government, as in Eng- 
land, or wrought out as here by the people themselves, 
and cast into representative forms. And now we see 
before us the anomaly, the mortifying contradiction, 
that it is in Great Britain, and not in the republic of 
the United States, with our venerated Declaration of 
Independence, that the great principles of Liberty 
and Fraternity are practically carried out. I do not 
mean to reflect upon any person or persons south or 
north of a certain geographical line. Our ancestors 
have eaten sour grapes, and their children's teeth are 
set on edge. We are all under the same condemna- 
tion. We are all responsible for these laws — for 
slavery, in some form or other. Our constitutional 
compact makes us responsible, and we cannot escape 
from our share of the evil and the wrong. 



192 RICHARD HENRY DANA, JR. 

But I must leave these generalities, and pass to the 
particular points of this case. This is the first case 
of its kind that has occurred. The decision in this 
case by the Commissioner, though not matter of pre- 
cedent, yet goes to the profession, the press, and into 
the private records of the country. Therefore we may 
be excused if we pay some considerable attention to 
the points of law involved. 

In the first place, it should be borne in mind that 
a fugitive slave is not a criminal. 

A few years ago, it was thought in Massachusetts 
that the pursuing of slaves was criminal. I thank 
God, it is not yet decided that the escaping from 
slavery is criminal. It is a mere question of property 
under this act. This law has recognized certain pro- 
perty in slaves, claimed in a certain manner, in the free 
States. It is a mere question of property. The South- 
ern man has certain property in his slave. That pro- 
perty we do not here recognize. But if the property 
escapes, and he pursues it, it is to be recognized in 
this court. Consequently, when a Southern man 
comes here and seizes a person as his property, he 
takes him at his own risk, a risk which every man 
takes in seizing anything as his property. If he seizes 
the wrong property, any person who owns it may resist 
him, or resist his ofiicer armed with a warrant. This 
has been ruled in various cases. 

Your Honor recollects in the 8th Pickering, the 
case of the Commonwealth vs. Kennard. There the 
writ was placed in the hands of the officer, to go and 
attach some property of the defendant. He attached 
certain property which he thought belonged to the 
defendant. He showed his warrant, but the true 
owners put him, neck and heels, out of the house. 



ARGUMENT FOR CHARLES G. DAVIS 193 

They were indicted, but the court sustained them 
in their act. 

In a civil action, if the wrong person, the wrong 
horse, or the wrong slave is taken, then the owner 
of the property may defend it, or the man seized may 
defend himself if he chooses. There is a different 
statute on the subject of interfering with the process 
of the courts, with judicial processes, under which 
this respondent is not held to answer. Whenever this 
respondent is held to answer for resisting judicial 
processes, then these other questions may be raised. 
He is now only charged with rescuing property from 
the owner, or the officer holding for the owner. 

The Constitution says that any person charged with 
crime, and escaping, shall be delivered up. But in 
the case of the fugitive slave, it carefully alters the 
phraseology. It does not say that any person charged 
with being a fugitive slave shall be surrendered, but 
any person who is a fugitive slave. In the one case, 
the charge is the only material fact, and is proved by 
record. In the other case, which is a question of pro- 
perty, the fact of property is the foundation of the 
proceeding. So, in this act of 1850, the sixth section 
does not provide that any person who claims a fugi- 
tive slave shall have the right to arrest him, but any 
person who is the owner of a fugitive slave may ar- 
rest him. So in the seventh section, the penalty is 
not inflicted for rescuing a person who is claimed as a 
fugitive slave, but for rescuing a person who is a fugi- 
tive slave. These provisions are in analogy with the 
law of property, and of the arrest of persons and pro- 
perty, in all other cases. As bad as this statute is, it 
is not quite so bad as its friends in this case would 
make it. 



194 RICHARD HENRY DANA, JR. 

The next consideration is, that it is not necessary 
that the claim should be made by virtue of legal pro- 
cess. The owner or his agent may arrest the fugitive 
with or without process. The offense is equally com- 
mitted, and the penalty is the same, whether the 
rescue is made from the owner without process, or 
from the officer having process. This fact, with the 
fact that there is a general statute relating to the of- 
fense of obstructing judicial processes, shows that 
this statute assumes the facts of property and es- 
cape to be true, and applies only to cases in which 
they shall prove to be true. 

If this is not so, what is the result? If a man claims 
another, without process, by putting his hand on his 
shoulder, though the man may be as free as you or I, 
if he resists, or his friends aid him in resisting, the 
offense is committed. A man claimed as a fugitive 
slave has been rescued or aided in his escape. You can- 
not refuse to deliver up a colored boy or girl born in 
your house, of free parents, to any man who knocks 
at your door and claims the child, with or without a 
warrant, without incurring the penalties of this act. 
This monstrous construction can never be admitted. 
I beseech the Commissioner to reconsider his inti- 
mated opinion on this point, and to hold the gov- 
ernment to preliminary proof, in the outset, that 
the person rescued was a slave by the law of Virginia, 
was the slave of the man who claimed him, and was 
a fugitive from that state of slavery. 

What evidence has there been of any of these facts? 
There has been no evidence offered that the prisoner 
was a slave by the law of Virginia ! — There has been 
no evidence offered that he was the slave of Mr. De- 
bree! There has been no evidence offered that he was 



ARGUMENT FOR CHARLES G. DAVIS 195 

a fugitive from a state of slavery ! Mr. Riley's return 
upon the warrant, stating that he had arrested "the 
within-named Shadrach," was admitted as evidence. 
I solemnly protested against the reception of the re- 
turn as evidence in a criminal proceeding between 
other parties; but it was received, and for a while held 
to be conclusive. But in answer to my question, Mr. 
Riley replied that he did not know the man he ar- 
rested to be the man named in the warrant. And how 
could he know it.^^ This nullified the return, and the 
government had no evidence. The district attorney 
saw this, and rising in his seat, in a threatening tone, 
said to Mr. Riley, "I warn you, sir, not to give that 
testimony!" The testimony was true, and it was ad- 
mitted by the court. Why was Mr. Riley warned? 
He was warned for private reasons. It was an official 
warning, by the agent of the executive to one of its 
servants. 

Mr. Lunt. I deny that it was a private warning. 
It was public, and for proper reasons. 

Mr. Dana. It was for private, or secret reasons, not 
given, not apparent, — some political or governmental 
terror, known only to the parties. There is no escape 
from this. The bar saw it. The audience saw it. It is 
graven with a pen of iron, and laid up in the rock 
forever ! 

All evidence of identity having failed, the govern- 
ment is driven to its last shift. Colonel Thomas is 
called in, and he testifies that the agent of Mr. Debree 
said to him, in the court-room, when the prisoner 
was brought in, "That is my boy!" This is hearsay 
evidence upon hearsay evidence. It is monstrous ! Yet 



196 RICHARD HENRY DANA, JR. 

on this slender thread of illegal testimony hung all 
the evidence of the facts of identity, slavery, and es- 
cape. If it is enough to prove that the man rescued 
was the man in custody, and upon whom the court 
was sitting in fact, no one denies it. But if it be neces- 
sary to show that the man in custody was the man 
named in the warrant, or that he was a slave, and a 
fugitive slave, there has been no competent evidence 
of any of those facts, and no evidence at all but of 
one of them. 

This man was not rescued from the court. The 
court had adjourned. The marshal had chosen to 
make the court-room a slave jail. The offense would 
have been the same in the eye of the law, if he had 
been rescued from the hands of the agent having no 
warrant, in the streets, or in a railroad car. 

I have nothing more to submit to the court on the 
subject of the law applicable to this case. I will now 
call your Honor's attention to the facts in proof. 

To avoid repetition and confusion, I will call your 
Honor's attention to single points. 

1. Mr. Davis was counsel in the case, and acted as 
such. Mr. Morton, who knew Shadrach, and to whom 
Shadrach looked for advice, recommended Mr. Davis 
to him as counsel. Mr. Riley testifies that Shadrach 
twice pointed out Mr. Davis to him as one of his coun- 
sel, when officially inquired of by Mr. Riley. Mr. 
King and Mr. List, counselors of this court, testify 
that Mr. Davis sat with, consulted with, and con- 
versed with the counsel who addressed the court, 
made a prolonged and careful examination of the pa- 
pers, and was the first who raised the doubt of their 
sufficiency. Mr. Sawin, an officer, says he acted as 
counsel. It is proved that he went into the court- 



ARGUMENT FOR CHARLES G. DAVIS 197 

room for the purpose of acting as counsel, and did 
not leave the room or the bar at all (the government 
will admit, not for more than a minute or two) until 
the last moment. What other evidence can there be 
of counsel's authority? It is seldom if ever in writing, 
but is proved by acts and recognitions. After such 
evidence of the acts and recognitions of a hasty and 
troubled forenoon, including the testimony of two 
of his own officers, I was amazed at the pertinacity of 
the prosecuting officer in calling Mr. Curtis to prove 
that Mr. Davis was not counsel. But Mr. Curtis ad- 
mitted that he knew nothing of the relations between 
Shadrach and Mr. Davis, that there are often coun- 
sel who do not address the court, and that Mr. Davis 
might have been of such counsel, for aught he knew. 
And most of the work of counsel was done after Mr. 
Curtis left. 

I think your Honor will find no difficulty in be- 
lieving that Mr. Davis acted as counsel for Shadrach, 
and was in attendance for that purpose. 

2. To connect Mr. Davis with the rescue, the gov- 
ernment has found it necessary to contend that he 
left the court-room and returned, shortly before the 
rescue took place. The only witness to this is Prescott; 
and how does he stand .^^ Prescott was in the entry 
before the rescue took place, he heard it debated, he 
saw it through, he gave no notice to any one, but evi- 
dently, from the testimony of Hanscom, he sympa- 
thized with the rescuers, and expressed his sympathy 
in a very unguarded manner for a man who was pre- 
sent, in the midst. All that day and the next, with 
the vanity of a youth who has been the fortunate 
spectator of the great event of the day, a fire, a hang- 
ing, or a murder, he vaunts his connection and sym- 



198 RICHARD HENRY DANA, JR. 

pathy with the rescue. On the third day come the 
arrests. He finds the government has learned that 
he was present. Six months in jail, and a thousand 
dollars fine, is no trifle to a mechanic's apprentice. He 
becomes alarmed, and offers himself as State's evi- 
dence, and becomes a swift, a terrified, and a blinded 
witness for the government. He says he was stand- 
ing in the entry by the recess that leads to the east 
door and the water-closet. While there, he saw a 
gentleman come along the entry and go past him into 
the recess, and he thinks through the east door into 
the court-room. If this was Mr. Davis, he must have 
gone through that door, for he was in the room and 
left it again a minute after. This gentleman he is 
sure was Mr. Davis, although he did not then know 
him by name and had only seen him once. Nor was 
there anything then to call his attention to a casual 
passer-by. 

Now, may it please your Honor, how long and when 
was Prescott at that post.^ According to his own tes- 
timony, about two minutes before the rescue began, 
and as soon as he saw the attempt was serious, he left 
that place for the stairs. Mr. Davis, then, must have 
entered the east door one or two minutes before he 
went out of the west door. Now, Mr. Warren, the 
deputy marshal, testifies that he passed through the 
entry into this closet just about two minutes before 
the rescue, and remembers seeing a young white man 
standing at the corner. To avoid the effect of this 
evidence, Prescott is recalled and says he remembers 
also to have seen a man come out at the east door and 
go into the closet, at this moment. But here the wit- 
ness made a mistake. He thought that Mr. Warren 
went through the east door, but Mr. Warren says 



ARGUMENT FOR CHARLES G. DAVIS 199 

that he came along the entry, and had not been in or 
out of that door. What then is the predicament in 
which Fresco tt has involved himself? Three differ- 
ent men must have gone into that recess in the short 
space of two minutes; two of them, at least, must have 
been in the closet at the same minute; and the east 
door must have been opened three times upon a knock 
from without. 

Against this evident mistake or willful perversion, 
what is the evidence.^ Mr. Riley and Mr. Warren both 
say that the east door was fastened on the inside, with 
strict orders not to have it opened at all; and so strict 
were they, that they themselves went and came by 
the west door. No one can be found who opened that 
door or saw it opened, or saw Mr. Davis go in or out 
at it, and it is next the marshal's desk, and in plain 
sight of every one. No one could come in at it, without 
knocking and having it opened from within. During 
the half-hour before the rescue, there was no one in 
the room but the prisoner, the officers, and the coun- 
sel. The doors were both in plain sight, the east door 
locked, and at the west door two officers, between 
whom every person must pass. Both these officers 
testify that Mr. Davis did not go out or in to their 
knowledge. Byrnes, Neale, and Sawin, the other of- 
ficers, did not see him go, and think he did not leave 
the room. Mr. Riley is confident he did not leave the 
room. Mr. Wright found Mr. Davis in the room, 
half an hour before the rescue, and is sure he did not 
leave. Not a man in the court-room saw him go or 
come, or believes that he did so. If Prescott's con- 
jecture is true, Mr. Davis must have gone out past 
the officers at the west door, returned to the east 
door, knocked and been admitted by another officer. 



200 RICHARD HENRY DANA, JR. 

— besides the inconsistencies about the men in the 
closet. 

We might well ask, what if this were Mr. Davis? 
What does it prove .^ He spoke to no one, except a 
"good day" to one man, and took no notice of the 
crowd at the door. But I will not argue this supposi- 
tion, for it is not true. It was not Mr. Davis. He did 
not leave the room until he went out for the last time. 
Something has been attempted to be made out of 
Mr. Davis's conversation with the officers in the 
room. A man engaged in a plot for a rescue would 
not be likely to expose himself to suspicion by vio- 
lent remarks to officers. But take the evidence as it 
stands. At the request of Mr. List, he asked Sawin, 
whom he knew, if the man next Shadrach was a South- 
ern man. This was proper. The counsel did not wish 
a man to sit next the prisoner, who might converse 
with him for the purpose of getting admissions from 
him. They feared he might be an agent of the claim- 
ant. He said privately to Mr. Sawin, whom he had 
known intimately for years, that this was a dirty busi- 
ness he was engaged in. He did not know Mr. Sawin 
to be an officer of the court. He knew him as a city 
constable; and supposed he had let himself out by 
the day as a catcher of fugitive slaves. I know some- 
thing of the feelings of Southern gentlemen as to this 
class of men. They are necessary evils. They use 
them as we use spies, informers, and deserters in war; 
they use them, but they despise them. I remember 
being in one of the chief cities of Virginia, and passing 
a large, handsome house, when my friend said to me, 
"There lives perhaps the richest man in our town, 
but he visits nowhere, nobody notices him. He is 
looked upon with aversion. He is a dealer in slaves! 



ARGUMENT FOR CHARLES G. DAVIS 201 

He keeps a slave-market, and pursues fugitives!" 
They look upon this occupation with as much con- 
tempt, ay, with more contempt than we seem to 
now; for there is a higher spirit in their aristocracy 
than in the ruling classes of our Northern cities at 
this moment. This was the feeling of Mr. Davis when 
he spoke to Sawin. This is the feeling of every man of 
honor. He wished a man whom he knew to be en- 
gaged in a more respectable business. I have said the 
same. I saw a man I knew in court the other day, 
letting himself by the dollar a day, in slave-catching. 
I begged him, if he could find any honest mode of get- 
ting a living, to abandon it. 

The Commissioner. Did you know him to be en- 
gaged in his legal duties.? 

Mr. Lunt. a very improper remark! 

Mr. Dana. I venture to suggest not. The remark 
was with reference to the future, and not to the pre- 
sent. 

The Commissioner. I see no distinction between 
attempting to deter men from executing the law and 
assisting in violating it. 

Mr. Dana. I am sorry I cannot see the impropri- 
ety of it. Perhaps I have not made myself clearly un- 
derstood. Mr. Davis expressed his opinion that the 
man had better be in better business. 

The Commissioner. It was equivalent to saying 
to the officer that the execution of the law was a mean 
business. 

Mr. Dana. That I propose to argue. 

The Commissioner. On that point, the defendant 
himself intimated, in his cross-examination, that the 
expression was not used as an observation in general. 



202 RICHARD HENRY DANA, JR. 

On being asked whether the remark was not said with 
regard to his business, he replied, yes. 

Mr. Dana. I did not so understand it. He intended 
to say this: "Mr. Sawin, you and I are old acquaint- 
ances. You are not obliged to do this business. It 
is mean business. Why do you volunteer in it.^ " This 
is what I myself have said, and what every high- 
minded man must feel. 

Mr. Lunt here intimated that Mr. Dana might 
find himself changing places at the bar, and be a de- 
fendant instead of counsel, if he advocated and ex- 
pressed such sentiments. 

Mr. Dana simply bowed to the attorney, and pro- 
ceeded. 

No citizen is bound to an active execution of this 
law, unless called upon as one of the fosse comitatus. 
Did your Honor feel bound to join in the pursuit last 
Saturday, when the mob passed you at the corner of 
Court Street? Do you feel bound, of a pleasant even- 
ing, to walk about in the neighborhood and see what 
fugitives you can find and dispose of? Would any 
compensation tempt you to do it? 

On the subject of the conversation with Byrnes, 
that was considered, of course, very truculent, on the 
government's evidence. But when explained by Mr. 
Minns, what is it? The defendant knows that the 
cause in which he is engaged, by a strange revulsion 
of public feeling, is unpopular. It is unprofitable, and 
whatever is unprofitable is unpopular. It is not gen- 
teel, and persons doubtful of their gentility ridicule it. 
Now Mr. Davis being engaged in this unpopular 
cause, Byrnes makes a remark which Mr. Minns 
thought was intended to irritate Mr. Davis. 



ARGUMENT FOR CHARLES G. DAVIS 203 

He did not hear the first part, but it ended with 
"killing the negroes." Mr. Davis felt that it was in- 
tended as a taunt to him. He answered him: "Then, 
on that principle, you ought to have your throats 
cut." I have no doubt it was a logical conclusion from 
Mr. Byrnes's premises, and nothing more. 

Up to this point, what is the evidence against Mr. 
Davis .f^ Am I not right in saying, nothing whatever 
— nothing more than any man would be subject to, 
who acted as counsel.? 

The only remaining point is his passing out of the 
door, and his conduct in the entry. On this point 
there is but one witness against him, and that is Mr. 
Byrnes, who, unfortunately, holds the office of deputy 
marshal. I shall not go into an examination of the 
evidence as to the reputation of this man. Twelve 
good men, known to us all, persons likely to know 
Byrnes's character, have testified that it is and has 
for years been bad, decidedly bad; and it was not 
denied by this witness, that the verdict at East 
Cambridge was rendered on the assumption of his 
not being worthy of belief. His own witnesses were 
chiefly casual acquaintances, or the boon companions 
of his bowling-alley and billiard-room, the retailers of 
liquors, men who, like him, live by violating the laws 
by night, which he lives by enforcing in the daytime. 

It is clearly proved that there was no suspicion of a 
rescue, either in the court-room or in the entry, until 
the instant it took place. Prescott did not suspect it. 
Mr. Homer, the highly respectable assistant clerk of 
the Municipal Court, who saw the whole occurrence 
from the stairway, did not think it would be anything 
serious. Mr. Warren, the deputy marshal, passe 
through the group at the door twice, but two or three 



204 RICHARD HENRY DANA, JR. 

minutes before the rescue, and suspected nothing. 
Five courts were in session, and persons were passing 
up the stairs and through the passageway to the last 
moment, and suspected nothing. The officers inside 
suspected nothing. Their defense against negligence 
is the defense of Mr. Davis. Mr. Davis knew that 
Mr. Morton expected to purchase the freedom of 
Shadrach. He had confidence that the documentary 
evidence was fatally defective. He was engaged to 
attend the consultations on the defense, and on the 
Habeas Corpus, that afternoon. He saw that Mr. 
Curtis was not disposed to hurry matters, or to deny 
the prisoner full opportunities for defense. And I will 
do Mr. Curtis the justice to say that I have no doubt 
it was his object to exhibit this law to us in its most 
favorable light; to justify its makers as far as possible. 
Mr. Davis neither knew, nor suspected, nor thought 
of a rescue at that door. Every witness says he went 
out of the door in the usual manner, except Hutchins, 
and when Hutchins thought he should have gone out 
in full front, instead of sidewise, your Honor well 
asked how otherwise could he have gone out, with a 
crowd against the door, and in the passage? I see 
that your Honor thinks nothing of that; although in 
the more jealous eye of the district attorney, it is mat- 
ter of suspicion. To minds so disposed, there is no- 
thing but is proof of guilt. If Mr. Davis had marched 
out in full front, it would have been in order to open 
the door wider, for the conspirators to rush in. Just 
so in the case of poor Shadrach's coat. Yesterday the 
district attorney was certain that Mr. Davis, or 
some one, apprised him of the intended rescue, be- 
cause he pulled his coat off. Now, when it is proved, 
by the government's own witnesses, that Shadrach 



ARGUMENT FOR CHARLES G. DAVIS 205 

afterwards put his coat on again, I suppose his putting 
it on will be just as good proof of the same thing. 

Mr. Byrnes thinks he recognized Mr. Davis's voice 
in the entry, calling out, "Take him out, boys!" But 
the same cry was uttered several times, and Mr. 
Homer and Mr. Hutchins, who saw Mr. Davis at the 
moment, and were outside, say it did not come from 
him, but from the negroes, and Prescott attributes it 
to the negroes. Four men were nearer to Mr. Davis 
than Byrnes was, and all of them exculpate Mr. Davis. 
And Byrnes is confessedly hard of hearing, and not 
particularly familiar with Mr. Davis's voice. More- 
over his character for truth and veracity is impeached. 

Mr. Davis was on or near the platform when Mr. 
Homer saw him. Mr. Adams met him on the lower 
floor, by the marshal's office, while the noise was go- 
ing on upstairs ; talked with him two or three minutes, 
and walked round the building, and saw the crowd go 
up the street. This proves that Mr. Davis did not 
linger near the rescuers; nor did he absolutely run 
away, or fly, as a man would who desired to avoid 
discovery. On the contrary, he did just as any other 
person would have done. He stayed long enough to let 
himself be seen by several persons, but not long enough 
to be of any aid to the rescuers. Nothing can be 
clearer of cause for imputation than the conduct of 
Mr. Davis in the entry and on the stairway. 

Such, please your Honor, is all the evidence against 
the defendant. It is reduced to an exclamation on 
the staircase, sworn to, not very confidently, by a deaf 
man, who was too far off to hear well at any rate of 
hearing, denied by three officers, with good hearing, 
two of whom were outside, while a dozen voices were 
calling out the same thing at the same moment; the 



206 RICHARD HENRY DANA, JR. 

moment, too, one of alarm and excitement on the part 
of the officers. If such evidence is sufficient, who can 
be safe? Who would dare to act as counsel in any case 
of public excitement, with a suspicious and angry- 
government watching every motion, served by officers 
of broken-down reputations? 

Please your Honor, I have done with the testimony. 
On what principles of proof is the judgment to be 
made up? 

The Constitution requires that no person shall be 
arrested without a warrant supported by oath. The 
Act of 1789 requires these proceedings to be conformed 
to proceedings in the state courts. In Massachusetts 
it has always been required that the complainant 
shall be first examined on his oath. In this case there 
has been no examination under oath. Mr. George 
Lunt has sworn, "so help me God," that Charles 
Gideon Davis, a counselor of this court, has aided 
in rescuing the prisoner. Yet, so help him God! he 
knew nothing about the facts. He has made oath to 
the form of the statute, and no more. 

Mr. Lunt here intervened and said it was the cus- 
tom for the district attorney to swear to complaints 
on hearsay evidence. 

Mr. Dana. But this is not stated as hearsay. It 
is sworn to as a fact. Charles G. Davis ''did rescue," 
and the above named George Lunt made oath to the 
truth of the facts. As a question of conscience, I leave 
it with that officer to settle with himself. As a matter 
of law, as a matter of vital importance to every citi- 
zen, as a great question of constitutional law, I 
earnestly protest against the issuing of warrants on 



ARGUMENT FOR CHARLES G. DAVIS 207 

the mere formal oaths of official persons, represent- 
ing a party in the proceedings, and utterly ignorant 
of the facts they swear to. If it be a custom, it is 
more honored in the breach than in the observance. 
But I deny that it is the custom. Complaints are 
sworn to by persons knowing the facts always in the 
state courts, and in my experience in the federal 
courts. If the prosecuting officer is obliged to swear 
to them, for want of other witnesses, he only swears 
to his information and belief. 

In closing my prolonged remarks, let me recapitu- 
late our case. Mr. Davis is not the man to urge others 
to acts he dares not commit himself. He believes this 
dreadful statute unconstitutional, a violation of our 
moral sense, a great breach upon the safeguards of 
freedom everywhere. Yet he will oppose it legally, 
by speech, by the pen, and in court. He will not yield 
to it any voluntary obedience, but he will not use 
force, or counsel citizens to use force to set aside the 
laws. He rejoices that Shadrach is free. Every right- 
minded man rejoices that he is free. Sober second 
thought teaches him and all of us that violent coun- 
sels are weak counsels. Better had it been for the 
cause of freedom, if, when the marshal called out to 
shoot the prisoner, some armed minister of the law 
had shot dead the unarmed, unoffending man ! Better 
had it been for him, and the cause of those like him, 
if John H. Riley, instead of flying to the window, had 
plunged that sword to the hilt in the heart of the cap- 
tive! Better if this temple of justice, which has al- 
ready been turned into a slave- jail and a slave-mar- 
ket, had also been made the shambles and the grave ! 

While we uphold the public peace and the dignity 
of all laws, let us regard with tenderness and consid- 



208 RICHARD HENRY DANA, JR. 

eration that poor class of oppressed men, our negro 
population, on whom the statute falls with the ter- 
rors and blackness of night. When one of their num- 
ber, by his industry and abilities, has raised himself 
to the dignity of a place in this bar, it was with morti- 
fication I heard him insulted, yesterday, on the stand, 
by an ofiicer of this court, who pointed him out, in 
giving his evidence, as "the little darky lawyer." 
While I rejoiced at the rebuke administered to that 
ofiicer from the bench, it was with deep regret that 
I saw the representative of the government lead off 
the laugh of the audience against him. 

Mr. Lunt. This is false. 

Mr. Dana. Do you deny you did so? It was seen 
and noticed by us all. I spoke to you at the time. 

Mr. Lunt. I only smiled. I cannot always con- 
trol my muscles. 

Mr. Dana. I am sorry you could not control them 
on this occasion. It led off and encouraged others, 
who take their cue from persons in high stations. 

The doings of these last few days are now part of 
history. If there has been a hasty and a needless arrest 
of a respectable gentleman; if counsel have been in- 
timidated, or witnesses threatened; if liberty of speech 
and action have been periled ; if the dignity and duty 
of office have been yielded to the unreasonable de- 
mands of political agents, and the commands of a mis- 
informed executive, — the inquest of public opinion 
is to sit upon the whole transaction, and it will be held 
up to the world. Proximus ardet Ucalegon! There are 
revolutions in the wheel of fortune. There are tides in 
the affairs of men. 



ARGUMENT FOR CHARLES G. DAVIS 209 

Let us hope that your Honor will be able to set this 
occurrence in its true light: — a sudden, unexpected, 
unpremeditated action of a group of excited men, and 
successful because unexpected. But a sworn coun- 
selor of this court, even in the excitement of the res- 
cue of a slave to his freedom, by those of his own flesh 
and bone, did not forget the duty he owed personally 
to the court and the law. 



X 

AGAINST THE RENDITION OF ANTHONY 
BURNS TO SLAVERY 

May 31, 1854. 

[An interesting account of Mr. Dana's services in behalf of 
fugitive slaves and rescuers is given in the Biography.^ 

The speech took four hours and Mr. Dana says in his journal: 
"My whole brief was on the sides of a piece of small note-paper 
and consequently I was obliged to write from recollection." 

I may repeat here that Mr. Dana refused all pay for his ser- 
vices to fugitive slaves.^] 

I CONGRATULATE you, slr, that your labors, so anx- 
ious and painful, are drawing to a close. I congratu 
late the Commonwealth of Massachusetts, that at 
length, in due time, by leave of the marshal of the 
United States and the district attorney of the United 
States, first had and obtained therefor, her courts may 
be reopened, and her judges, suitors and witnesses 
may pass and repass without being obliged to satisfy 
hirelings of the United States marshal and bayo- 
neted foreigners, clothed in the uniform of our army 
and navy, that they have a right to be there. I con- 
gratulate the city of Boston, that her peace here is no 
longer to be in danger. Yet I cannot but admit that 
while her peace here is in some danger, the peace of all 
other parts of the city has never been so safe as while 
the marshal has had posse of specials in this court- 

1 Vol. i, pp. 178-201, and for Anthony Burns case, vol. i, pp. 262-295. 

2 BiograpJuj, vol. i, pp. 291-294. 



RENDITION OF ANTHONY BURNS 211 

house. Why, sir, people have not felt it necessary to 
lock their doors at night, the brothels are tenanted 
only by women, fighting dogs and racing horses have 
been unemployed, and Ann Street and its alleys and 
cellars show signs of a coming millennium. 

I congratulate, too, the government of the United 
States, that its legal representative can return to his 
appropriate duties, and that his sedulous presence will 
no longer be needed here in a private civil suit, for the 
purpose of intimidation, a purpose which his effort the 
day before yesterday showed every desire to effect, 
which, although it did not influence this court in the 
least, I deeply regret your Honor did not put down at 
once, and bring to bear upon him the judicial power 
of this tribunal. I congratulate the marshal of the 
United States, that the ordinary respectability of his 
character is no longer to be in danger from the charac- 
ter of the associates he is obliged to call about him. I 
congratulate the officers of the army and navy, that 
they can be relieved from this service, which as gentle- 
men and soldiers surely they despise, and can draw 
off their non-commissioned officers and privates, both 
drunk and sober, from this fortified slave-pen, to the 
custody of the forts and fleets of our country, which 
have been left in peril, that this great republic might 
add to its glories the trophies of one more captured 
slave. 

I offer these congratulations in the belief that the 
decision of your Honor will restore to freedom this 
man, the prisoner at the bar, whom fraud and violence 
found a week ago a free man on the soil of Massachu- 
setts. But rather than that your decision should con- 
sign him to perpetual bondage, I would say — let this 
session never break up ' Let us sit here to the end of 



212 RICHARD HENRY DANA, JR. 

that man's life, or to the end of ours. But, assured that 
your Honor will carry through this trial the presump- 
tion which you recognized in the outset, that this man 
is free until he is proved a slave, we look with confi- 
dence to a better termination. 

Sir Matthew Hale said it was better that nine 
guilty men should escape than that one innocent man 
should suffer. This maxim has been approved by all 
jurists and statesmen from that day to this. It was ap- 
plied to a case of murder, where one man's life was on 
one side and the interest of an entire community on 
the other. How much more should it be applied to a 
case like this, where on the one side is something 
dearer than life, and on the other no public interest 
whatever, but only the value of a few hundred pieces 
of silver, which the claimant himself, when they were 
offered to him, refused to receive. It is not by rhetoric, 
but in human nature, by the judgment of mankind, 
that liberty is dearer than life. Men of honor set their 
lives at a pin's fee on point of etiquette. Men peril 
it for pleasure, for glory, for gain, for curiosity, and 
throw it away to escape poverty, disgrace, or despair. 
Men have sought for death, and digged for it as for hid 
treasure. But when do men seek for slavery, for cap- 
tivity.^ I have never been one of those who think hu- 
man life the highest thing. I believe there are things 
more sacred than life. Therefore I believe men may 
sacrifice their own lives, and the community, some- 
times the single man, may take the lives of others. 
Such is the estimation in which it is held by all man- 
kind. No! there are some in my sight now who care 
nothing for freedom, whose sympathies all go for des- 
potism; but thank God they are few and growing 
less. Such is the estimate of life compared with free- 



RENDITION OF ANTHONY BURNS 213 

dom, which the common opinion of mankind and the 
common experience of mankind has placed upon it. 
Here is a question of a few despised pieces of silver on 
the one hand, and on the other perpetual bondage of 
a man, from early manhood to an early or late grave, 
and the bondage of the fruit of his body forever. We 
have a right, then, to expect from your Honor a strict 
adherence to the rule that this man is free until he is 
proved a slave beyond every reasonable doubt, every 
intelligent abiding misgiving proved by evidence of 
the strictest character, after a rigid compliance with 
every form of law which statute, usage, precedent has 
thrown about the accused as a protection. 

We have before us a free man. Colonel Suttle says 
there was a man in Virginia named Anthony Burns; 
that that man is a slave by the law of Virginia; that he 
is his slave, owing service and labor to him; that he 
escaped from Virginia into this State, and that the 
prisoner at the bar is that Anthony Burns. He says all 
this. Let him prove it all! Let him fail in one point, 
let him fall short the width of a spider's thread, in the 
proof of all his horrid category, and the man goes free. 

Granted that all he says about his slave in Virginia 
be true — is this the man.^^ 

On the point of personal identity, the most fre- 
quent, the most extraordinary, the most notorious, 
and sometimes the most fatal mistakes have been 
made in all ages. One of the earliest and most pa- 
thetic narratives of Holy Writ is that of the patriarch, 
cautious, anxious, crying again and again, "Art thou 
my very son Esau.^^" and, by a fatal error, reversing a 
birthright, with consequences to be felt to the end of 
time. You know, sir, — they are matters of common 
knowledge, — that a mother has taken to her bosom 



214 RICHARD HENRY DANA, JR. 

a stranger for an only son, a few years absent at sea. 
Whole families and whole villages have been deceived 
and perplexed in the form and face of one they have 
known from a child. You have found it difficult to 
recognize your own classmates, at the age of three or 
four and twenty, who left you in their sophomore year. 
Brothers have mistaken brothers. We have the Com- 
edy of Errors. Let us have no Tragedy of Errors, here ! 
The first case under this statute, the case of Gibson, 
in Philadelphia, was a mistake. He was sworn to, and 
the commissioner was perfectly satisfied, and sent him 
to Maryland. Against the will of the claimant, from 
the humanity of the marshal, who had his doubts, 
and would not leave the man at the state line, but 
went with him to the threshold of the door of the mas- 
ter's house, the mistake was discovered before it was 
too late. In the late case of Freeman, in Indiana, the 
claimant himself was present, and the testimony was 
entirely satisfactory, and he was remanded; but it 
turned out a mistake, and he has recovered, I am told, 
two thousand dollars in damages. These are the mis- 
takes discovered. But who can tell over to you the 
undiscovered mistakes? the numbers who have been 
hurried off, by some accidental resemblance of scars or 
cuts, or height, and fallen as drops, undistinguishable, 
into the black ocean of slavery? 

Make a mistake here, and it will probably be ir- 
remediable. The man they seek has never lived under 
Colonel Suttle's roof since he was a boy. He has al- 
ways been leased out. The man you send away would 
be sold. He would never see the light of a Virginia 
sun. He would be sold at the first block, to perish 
after his few years of unwonted service, on the cotton- 
fields or sugar-fields of Louisiana and Arkansas. Let 



RENDITION OF ANTHONY BURNS 215 

us have, then, no chance for a mistake, no doubt, no 
misgiving! 

What, then, is the evidence? They have but one 
witness, and one piece of paper. The paper cannot 
identify, and the proof of identity hangs on the testi- 
mony of one man. It all hangs by one thread. That 
man is Mr. Brent. Of him, neither you nor I, sir, know 
anything. He tells us he is engaged in the grocery 
business, and lives in Richmond, Virginia. Beyond 
this, we know nothing, good or bad. He knew Burns 
when a boy, running about at Colonel Suttle's, too 
young to labor. He next hired him himself, in 1846 
and 1847. This was seven years ago. He says Burns 
is now twenty -three or twenty-four years of age. He 
was then sixteen or seventeen years old; he is now a 
matured man. 

Since that time he has leased him, as agent for Colo- 
nel Suttle, but does not seem to have been brought 
in close contact with him, or to have done more than 
occasionally meet him in the streets. The record they 
bring here describes only a dark complexioned man. 
The prisoner at the bar is a full-blooded negro. Dark 
complexions are not uncommon here, and more com- 
mon in Virginia. The record does not show to which 
of the great primal divisions of the human race the 
fugitive belongs. It might as well have omitted the 
sex of the fugitive. It says he has a scar on one of his 
cheeks. The prisoner has, on his right cheek, a brand 
or burn nearly as wide as the palm of a man's hand. 
It says he has a scar on his right hand. A scar! The 
prisoner's right hand is broken, and a bone stands out 
from the back of it, a hump an inch high, and it hangs 
almost useless from the wrist, with a huge scar or gash 
covering half its surface. Now, sir, this broken hand, 



216 RICHARD HENRY DANA, JR. 

this hump of bone in the midst, is the most noticeable 
thing possible in the identifying of a slave. His right 
hand is the chief property his master has in him. It is 
the chief point of observation and recollection. If that 
hand has lost its cunning or its power, no man hears it 
so soon and remembers it so well as the master. Now, 
it is extraordinary, sir, that neither the record nor Mr. 
Brent say anything about the most noticeable thing 
in the man. Nowhere in Mr. Brent's testimony does 
he allude to it, but only speaks of a cut. The truth is, 
please your Honor, one of two things is certain here. 
If Mr. Brent does know intimately Anthony Burns, 
of Richmond, and has described him as fully as he can, 
the prisoner is not the man. Anthony Burns was miss- 
ing, and Mr. Brent hurried down to Alexandria to tell 
Colonel Suttle. The record is made up, which is prob- 
ably still only Mr. Brent on paper. Mr. Brent comes 
here with Colonel Suttle, as his friend. Emissaries are 
sent out with the description in their hand, and they 
find a negro, with a huge brand on his cheek and a 
broken and cut hand, and that is near enough for 
catchers, paid by the job, to a "dark complexioned 
man," with "a scar on the cheek and on the right 
hand." Mr. Brent knows, and does not swear other- 
wise, that the Anthony Burns he means had only a 
scar or cut, and he distinctly said "no other mark." 
But still he swears to the man. Identification is mat- 
ter of opinion. Opinion is influenced by the temper, 
and motive, and frame of mind. Remember, sir, the 
state of political excitement at this moment. Remem- 
ber the state of feeling between North and South; the 
contest between the slave power and the free power. 
Remember that this case is made a state issue by Vir- 
ginia, a national question by the executive. Reflect 



RENDITION OF ANTHONY BURNS 217 

that every reading man in Virginia, with all the pride 
of the Old Dominion aroused in him, is turning his 
eyes to the result of this issue. No man could be more 
liable to bias than a Virginian, testifying in Massachu- 
setts, at this moment, on such an issue, with every 
powerful and controlling motive on earth enlisted for 
success. 

Take the other supposition, which may be the true 
one, that Mr. Brent does not know Anthony Burns 
particularly well. He goes down to Alexandria to tell 
Colonel Suttle that he has escaped. The record is 
made up there, as best they can. Mr. Brent did not 
go there as a witness to identify, and does the best he 
can. He does not recollect whether he is a negro or 
mulatto, or of what shade, so he calls him "dark com- 
plexioned," and he can speak only of a scar, he does 
not know on which cheek, and of a scar on the hand. 
Beyond this, he is uncertain. If this is so, your Honor 
can have no satisfying description of Anthony Burns, 
the slave of Colonel Suttle, if such a person there be. 

But there is, fortunately, one fact, of which Mr. 
Brent is sure. He knows that he saw this Anthony 
Burns in Richmond, Virginia, on the 20th day of 
March last, and that he disappeared from there on the 
24th. To this fact, he testifies unequivocally. After 
all the evidence is put in on our side to show that the 
prisoner was in Boston on the 1st and 5th of March, 
he does not go back to the stand to correct an error, or 
to say that he may have been mistaken, or that he 
meant only to say that it was about the 20th and 24th. 
He persists in his positive testimony, and I have no 
doubt he is right and honest in doing so. He did see 
Anthony Burns in Richmond, Virginia, on the 20th day 
of March, and Anthony Burns was first missing from 



218 RICHARD HENRY DANA, JR. 

there on the 24th. But the prisoner was in Boston, 
earning an honest livelihood by the work of his hands, 
through the entire month of March, from the first 
day forward. Of this your Honor cannot, on the 
proofs, entertain a reasonable doubt. 

William Jones, a colored man well known in this 
city, who works for the city, and for the Mattapan 
Company, and for others, and entirely unimpeached, 
testifies that on the first day of March he met the pris- 
oner in Washington Street. He knows the man. He 
tells you of all the places he went to with him to find 
work for him to do. He received him into his house as 
a boarder on that day. On the 5th day of March they 
began working together at the Mattapan Works, in 
South Boston, cleaning windows and whitewashing, and 
worked for five or six days. Then, on the 18th, they 
worked at the City Building. Then Burns left him for 
another employ. Jones cannot be mistaken as to the 
identity. The only question would be as to the truth 
of his story. It is a truth or it is a pure and sheer fabri- 
cation. I saw at once, and every one must have felt, 
that the story so full of details, with such minuteness 
of dates and names and places, must either stand im- 
pregnable or be shattered to pieces. The fullest test 
had been tried. The other side has had a day in which 
to follow up the points of Jones's diary, and discover 
his errors and falsehoods. But he is corroborated in 
every point. 

He came into the room and recognized him at once, 
and the prisoner recognized the witness. His testi- 
mony corroborates Jones in another particular. Jones 
says he remembers the dates from the fact of a dispute 
between him and the prisoner, which led him to ask 
Mr. Russell to enter the dates of the prisoner's coming 



RENDITION OF ANTHONY BURNS 219 

to his house in his pocket-book, as Jones himself does 
not write. This pocket-book was produced by Jones, 
and Mr. Russell, who made the entries, was sworn by 
us and has been here. 

Mr. Whittemore is a member of the City Council, 
and was one of the Directors of the Mattapan Com- 
pany. He made a journey to the West, from which he 
returned on the 8th day of March. On that day or the 
next, he went to the works, where his counting-room 
is. The prisoner and Jones were cleaning the windows 
of the counting-room. He noticed the peculiar condi- 
tion of his hand, and the mark on his cheek. He is sure 
of the man and of the date. He heard at the armory 
of the Pulaski Guards, of which he is lieutenant, of 
Jones's testimony, and said to himself and others, "I 
shall know that man,''' and came here to see. As soon 
as he saw him, he knew him. 

Now, sir, Mr. Whittemore, in answer to a question 
from me, whether he was under the odium of being 
either a Free Soiler or an Abolitionist, said that he was 
a Hunker Whig. The counsel thought this an irrele- 
vant question. I told him I thought it vital. Not that 
the political relations of Mr. Whittemore could affect 
your Honor's mind, but that it shows he has no bias on 
our side. Moreover, I am anxious not only that your 
Honor should believe our evidence, but that the pub- 
lic should justify you in so doing. And there is no fear 
but that the press and the public mind will be per- 
fectly at ease if it knows that your Honor's judgment 
is founded even in part, in a fugitive-slave case, in 
favor of the fugitive, on the testimony of a man who 
has such a status illcesw existimationis, as a Hunker 
Whig, who is eke a train-band captain in a corps 
under arms! 



220 RICHARD HENRY DANA, JR. 

Jones says that they went to work every day at 
seven o'clock. Mr. Culver, the foreman, and Mr. Put- 
nam, a machinist, and Mr. Gilman, the teamster, of the 
works, say that the hour of work was changed to half 
after six on the first of April. They also are quite sure, 
from the course of the work and their general recollec- 
tion, that it was done early in March. Mr. Gilman 
has an additional recollection that it was a few days 
after pay day, which was March 1. Mr. Putnam has 
a memorandum which shows that he began his own 
work there on the 3d or 4th day of March, and he 
says Jones began cleaning the windows a few days 
after. 

Then Mr. Brown, one of the city police, now on 
duty, testifies that on entering the court-room, he re- 
cognized the prisoner at once. He has no doubt of him. 
He first saw him at the Mattapan Works cleaning win- 
dows with Jones. He himself left off his work there on 
the 20th of March, as his memorandum and recollection 
show. About ten days before he left off he changed his 
work to a new building in which there were no win- 
dows. The windows were cleaned in the old building 
and of course before the 10th of March. His attention 
was called to the man at the time. He spoke to him, 
and asked him to wash a certain window. 

This is the testimony as to the Mattapan Works. 
Is it not conclusive.^ It is clear that the work was done 
there by Jones and a colored man from the 5th to the 
10th of March. Jones worked there at no other time. 
This man was the prisoner. On a question of identity, 
numbers are everything. One man may mistake, by 
accident, by design or bias. His sight may be poor, 
his observation imperfect, his opportunities slight, his 
recollection of faces not vivid. But if six or eight men 



RENDITION OF ANTHONY BURNS 221 

agree on identity, the evidence has more than six or 
eight times the force of one man's opinion. Each man 
has his own mode and means and habits of observa- 
tion and recollection. One observes one thing, and an- 
other another thing. One makes this combination and 
association, and another that. One sees him in one 
light or expression, or position, or action, and another 
in another. One remembers a look, another a tone, 
another the gait, another the gesture. Now if a con- 
siderable number of these independent observers com- 
bine upon the same man, the chances of mistake are 
lessened to an indefinite degree. What other man 
could answer so many conditions, presented in so vari- 
ous ways ? 

On the point of the time and place, too, each of 
those witnesses is an independent observer. These 
are not links in one chain, each depending on an- 
other. They are separate rays, from separate sources, 
settling on one point. 

Here we have the testimony of Mr. Favor, whom I 
know you have noticed as a respectable man, who re- 
members Jones bringing the prisoner to his shop, in 
Lincoln Street, to find work, very early in March; and 
Stephen Maddox, a tailor, says that Jones brought the 
prisoner to his shop to find work. He remembers tell- 
ing him that he should have no w^ork for him for two 
months, as his outdoor work, cleaning, etc., did not 
begin so as to require help before the first of May. 
This is the natural observation, and it is as natural he 
should remember it. A poor man was applying for 
work. He was obliged to put him off, and, to show his 
sincerity, he explained to him the course of his work. 
He was obliged to sentence him to disappointment and 
delay for two months. He remembered it. It would 



RICHARD HENRY DANA, JR. 

be remembered by a kindly man, under such circum- 
stances. 

The attempt at contradiction as to the City Build- 
ings fails. Mr. Gould confirms Jones's account that 
he worked there on the 18th or 17th of March. He 
does not recollect the prisoner being with him; but he 
admits that he was there only twice a day, and Jones 
said that the prisoner was there only an hour or so, to 
help him a little without pay. 

Mr. Brent puts his case resolutely and unequivo- 
cally on the ground that the man he means was in 
Richmond up to the 20th. We have proved that the 
prisoner was here on the 1st and 5th and 10th and 
18th. This is inconsistent with the claimant's case. 
This witness does not pretend a mistake or doubt. 
They cannot pretend one in argument, because he has 
been in court all the while, and is not recalled. 

If we had the burden of proof, should we not have 
met it.f^ How much more then are we entitled to pre- 
vail, where we have only to shake the claimant's case 
by showing that it is left in reasonable doubt.^^ 

Whatever confidence I may have in this position, 
I must not peril the cause of my client by any over- 
weening confidence in my own judgment. I must 
therefore call your Honor's attention to the other 
points of our defense. 

Assume now, for the purpose of further inquiry, 
that all our testimony is thrown out, and let the case 
rest on their evidence alone. It is incumbent on them 
to show that the prisoner owes service and labor to 
Colonel Suttle, by the laws of Virginia, and that he 
escaped from that State into Massachusetts. 

Does he owe service and labor to Colonel Suttle.'^ 

The claimant, perhaps, will say that the record is 



RENDITION OF ANTHONY BURNS 223 

conclusive on the facts of slavery and escape, and that 
the only point open is that of identity. That is so if 
he adopts the proper mode of proceeding to make it so. 
Section 10 of the Fugitive Slave Law provides a cer- 
tain mode of proceeding, anomalous, in violation of 
all rules of common law, common right and common 
reason, a proceeding that has not its precedent, so far 
as I can learn, in the legislation of any Christian na- 
tion, therefore to be strictly construed, and not to be 
availed of unless strictly followed. It provides that 
the questions of slavery and escape shall be tried, ex 
"parte, in the State from which the man escaped, and 
not in the State where he is found. The hearing and 
judgment are to be there and not here. This judgment, 
being authenticated, is to be produced here, and the 
commissioner here has only jurisdiction to inquire 
whether the person arrested is the person named in 
the judgment. He cannot go into the matters there 
decided, but only see if the record fits the man. 

Section 6 of the statute provides an entirely differ- 
ent proceeding. It authorizes the court here to try the 
questions of slavery and escape, as well as identity, 
and requires them to be tried by evidence taken here, 
or certified from the State from which he escaped, or 
both. It is not pretended that this transcript of a re- 
cord is such evidence. Now, which proceeding are we 
under .'^ Doubtless under that provided in the sixth 
section. The claimant introduces Mr. Brent, and by 
him offers evidence to prove the fact of slavery, the 
title of Colonel Suttle, and the escape. He goes fully 
into these points. This was not offered as a mode of 
proving identity. The identity was proved first, and 
then the other evidence was put in. It was professedly 
to prove title and escape. Parts of it were objected to 



224 RICHARD HENRY DANA, JR. 

as not competent to prove those points, and advocated 
as competent for that purpose, and on no other ground, 
and ruled in or ruled out on that ground. They intro- 
duced evidence tending to show that a certain negro 
woman was a slave of Colonel Suttle's and that that 
woman was the mother of Burns, and that his brothers 
and sisters are slaves, and they introduced evidence 
tending to show an escape, in the same manner. After 
that, they offered the record and we objected to it, 
and it was received de bene esse, and its admissibility 
is now to be decided upon. 

We say that the two proceedings cannot be com- 
bined. The jurisdiction and duties of the magistrate 
are different in the two cases. The rights of parties 
are different. It is evident that the statute makes 
them different proceedings and not merely different 
proofs, for they are not merely put into separate sec- 
tions, but each section contains a repetition of the 
foundation of a proceeding, its progress, the decision 
and execution, and each provides for the receiving of 
evidence of identity. There is a different form of cer- 
tificate required in the two cases. On the face of the 
statute they are two proceedings. You cannot com- 
bine scire facias on a record with a count in assumpsit, 
proving the original debt by parol. You cannot, on the 
voir dire, examine the party himself, and prove his in- 
terest by other evidence also. 

Even if the record can be combined with parol 
proof, it can hardly be contended that it is conclusive 
against the proof the claimant himself puts with it. 
When the statute says it is conclusive, it means that 
the defendant is not admitted to contradict it by 
proof. But if the claimant introduces proof which 
overthrows its allegations, can he contend that it is 



RENDITION OF ANTHONY BURNS 225 

conclusive? If he proves that the right to the certifi- 
cate is in Millspaugh, and not in Colonel Suttle, can 
he fall back on his record and claim a certificate for 
Colonel Suttle? If he proves that the man did not es- 
cape, can he fall back on his record and claim a certi- 
ficate for an escaped fugitive? 

I pray your Honor, earnestly, to confine this record 
— the venomous beast that carries the poison to life 
and liberty and hope in its fang — to confine it in the 
straitest limits. It deserves a blow at the hand of 
every man who meets it. 

If your Honor considers the record as admissible, in 
other respects, and conclusive if admitted, we have ob- 
jections to offer to it from the nature of its contents 
and form. 

In the first place, it does not purport to be a "record 
of the matters proved." It is all in the way of recital. 
It says, "On the application of Charles F. Suttle, 
who this day appeared and made satisfactory proof 
that, etc., it is ordered that the matters so proved and 
set forth be entered on the records of this court," and 
there it ends. Well, have they entered the facts on the 
record? If so, I should like to see the entry. Where is 
the transcript of that record? All we have here is the 
porch to the building, with a superscription reciting 
what is to be found within. We are entitled to the 
building and its contents. 

In the next place, the record does not, as I have 
already once observed, set forth a description of the 
person "with such convenient certainty as may be." 
It does not tell you whether he is a negro, a mulatto, 
a white, or an Indian. The rest of the description 
would be full enough, if it fitted the prisoner at the bar. 
That goes, to be sure, to the point of identity. But let 



226 RICHARD HENRY DANA, JR. 

me remind you, sir, here, that a scar is not a large 
brand, and that a scar is no adequate description of 
the state or appearance of that man's hand. 

The record is also objectionable, because it does not 
allege that he escaped into another state. Unless he 
has escaped into another state, the casus fwderis does 
not arise. And how is your Honor to know that he did 
escape into another state .^ The only evidence you can 
legally receive is on the point of identity. If you pro- 
ceed strictly by the record, you are without evidence 
of one great fact necessary to call into action the con- 
stitutional powers. 

We have great confidence, please your Honor, that 
the record will be excluded on one or more of these 
points ; or that, if admitted, we may control it by the 
claimant's own testimony. 

Does he then, by the claimant's own evidence, owe 
to Colonel Suttle service and labor .^^ 

Their evidence shows conclusively that he does not. 
Mr. Brent tells us that Colonel Suttle made a lease of 
him to a Mr. Millspaugh of Richmond, in January last, 
and that he was in the service of Mr. Millspaugh when 
he disappeared. It is the ordinary case of a lease of a 
chattel. The lessee has the temporary property and 
control. The reversioner has no right to interfere with 
the possession or direction of the chattel during the 
lease. This proceeding has always been defended, by 
those who hold it to be constitutional, on the ground 
that it merely secures and affects the temporary con- 
trol of the slave, and does not affect the general pro- 
perty. It is not a judgment in rem. There is no decree 
affecting title. If this is so, there can be no pretense 
of a right on the part of the reversioner to the certifi- 
cate prayed for here. A little consideration makes this 



RENDITION OF ANTHONY BURNS 227 

clear. The claimant says he has escaped without 
leave, and asks for power to reduce him into posses- 
sion and under control again — into his own posses- 
sion and under his own control. Now, Mr. Millspaugh 
has the sole right of possession and control. Mr. Mills- 
paugh may allow him to come to Massachusetts and 
stay here until the end of the lease, if he chooses. Colo- 
nel Suttle has nothing to say about it. If Mr. Mills- 
paugh does not return him to Colonel Suttle at the 
end of his lease, he is liable to Colonel Suttle on his 
bond, which Mr. Brent tells us is given in these cases. 
Suppose your Honor should grant the certificate, and 
Colonel Suttle should take the man to Mr. Millspaugh, 
Mr. Millspaugh would say to him, "Why are you car- 
rying my man about the country.^ I have not asked 
or desired you to do any such thing." 

"But," says Colonel Suttle, "I have a certificate 
from a commissioner in Boston certifying that he is 
now owing me service and labor, and authorizing me 
to take and carry him off." 

"Then the commissioner did not know that I had 
a lease of him." 

"Yes, he did. Mr. Brent let that out. It came very 
near upsetting our case. But we got our certificate, 
somehow or other, notwithstanding." 

But no such answer will be given to any certificate 
to be issued by your Honor. On the contrary, when 
Colonel Suttle goes back to Virginia and tells Mr. 
Millspaugh that he was refused the certificate, Mr. 
Millspaugh will say to him: "To be sure you were. 
Did you not know law enough to know, you and Brent 
together, that you had no right to the possession and 
control of the man I have hired on a lease .^ Did you 
suppose the Boston commissioners would have so 



228 RICHARD HENRY DANA, JR. 

little regard for this species of property in Virginia as 
to give it away to the first comer?" 

Besides this lease, leaving only a reversion in Colonel 
Suttle, the reversion itself is mortgaged. Mr. Brent 
told us, in his simplicity, thinking he was all the time 
proving prodigious acts of ownership, that Colonel 
Suttle mortgaged Burns, with other property, to one 
Towlson. This mortgage has never been paid or dis- 
charged, so far as we know. The evidence leaves it 
standing. Even if the reversioner could otherwise have 
this certificate, he cannot here, for there is a mortgage. 
A mortgage of a chattel passes the legal property, so 
that the mortgagor cannot maintain trover for its con- 
version. (Holmes vs. Bell, 3 Cush.) 

There is greater need for adhering to this rule as to 
the right of present possession and control in this pro- 
ceeding than in ordinary actions, for an escape is an 
essential element in the claimant's case. To consti- 
tute an escape, the fugitive must have gone away 
against the will of the person having a right to say 
whether he shall go or come. This person is the lessee. 
As Colonel Suttle could not authorize Burns to leave 
Virginia, so neither could he forbid his leaving it. He 
has simply nothing to say about it. He cannot author- 
ize him to stay in Massachusetts, nor can he compel 
him to go away. He may say that if he cannot, his 
reversion is good for nothing. That is the case with all 
leases of chattels. He should think of that when he 
parts with his property. He does provide for it. He 
takes a bond. If the man is not returned to him at the 
end of his lease, let him look to his bond ! Let him not 
come here, to Massachusetts, disturb the peace of 
the nation, exasperate the feelings of our people to the 
point of insurrection by this revolting spectacle, sum- 



RENDITION OF ANTHONY BURNS 229 

mon in the army and navy to keep down by bayonets 
the great instincts of a great people, haul to prison 
our young men of education and character, and perse- 
cute them even unto strange cities, and cause the 
blood of a man to be shed. Let him look to his bond ! 
If he must peril life, disturb peace, outrage feelings, 
and exasperate temper from one end of the Union to 
the other, let him do it for something that belongs to 
him, not for a mortgaged reversion in a man. Let him 
look to his bond ! 

Mr. Millspaugh, who alone has the right, if any one, 
to institute these proceedings, has done nothing about 
them. They do not produce even his affidavit. 

In the next place, setting aside the difficulty about 
the lease, and the mortgage, and the identity, has the 
man ever escaped .^^ He is said to have escaped from 
the control and possession of Mr. Millspaugh. How 
do we know that.^^ The only evidence is that of Mr. 
Brent, and what does Mr. Brent know about it.^ He 
only knows that he was in Richmond on the 20th, and 
was missing on the 24th. He does not even say that 
he has ever spoken to Mr. Millspaugh about it, or that 
Mr. Millspaugh was at home, or has complained about 
it. Mr. Millspaugh may have given him leave, or may 
not care whether he is away or not. There is no evi- 
dence of an escape. There is only evidence that he is 
missing. He was there. Now (for the argument, grant 
it) he is here. What of it .^ Did he come away of his own 
will, and against the will of Mr. Millspaugh.^ Unless 
both these concur, there is no escape. There is no evi- 
dence on either point, except the evidence of the pris- 
oner, which they have put in. Mr. Brent says that, 
on the night of the arrest. Colonel Suttle asked the 
prisoner how he came here. He replied that he was at 



230 RICHARD HENRY DANA, JR. 

work on board a vessel, became tired and fell asleep, 
and was brought off in the vessel. As they have put 
in this evidence, they are bound by it. This shows 
there was no escape, for it is the only evidence at 
all bearing upon the character of his act. Taking this 
to be true, as the claimants must, there is no escape. 
In Aves's case, 18 Pickering, 193, and Sims's case, 7 
Cushing, 285, it has been decided that the escape is 
the casus foederis under the Constitution. No matter 
how the slave got here, if he did not voluntarily es- 
cape against his master's will, unless both these ele- 
ments concur, he cannot be taken back. Therefore 
the slave was held free, in a case where he and his mas- 
ter were both sent here by a superior power, in a pub- 
lic vessel. (Referred to in Sims's case.) 

If there was any doubt about this matter of escape, 
the point should be determined against the claimant, 
because he has failed to produce proof within his power 
which would settle the matter. He has not produced 
the only man beside the fugitive who knows whether 
he did escape or not. If he could not produce him in 
person, if there be a judge or a justice of the peace in 
the Old Dominion, he could have brought his affidavit. 
He has had time to procure it since this trial began. 
He does not ask for a delay that he may procure it. 

The only evidence, in this conflict, which can aid 
your Honor's judgment, is the evidence of the admis- 
sion of the prisoner, made to Colonel Suttle, on the 
night of the arrest. He was arrested suddenly, on a 
false pretense, coming home at nightfall from his day's 
work, and hurried into custody, among strange men, 
in a strange place, and suddenly, whether claimed 
rightfully or claimed wrongfully, he saw he was 
claimed as a slave, and his condition burst upon him 



RENDITION OF ANTHONY BURNS 231 

in a flood of terror. This was at night. You saw him, 
sir, the next day, and you remember the state he was 
then in. You remember his stupefied and terrified con- 
dition. You remember his hesitation, his timid glance 
about the room, even when looking in the mild face 
of justice. How little your kind words reassured him. 
Sir, the day after the arrest you felt obliged to put off 
his trial two days, because he was not in a condition 
to know or decide what he would do. 

Now, you are called upon to decide his fate upon 
evidence of a few words, merely mumblings of assent 
or dissent, perhaps mere movings of the head, one way 
or the other, construed by Mr. Brent into assent or 
dissent, to questions put to him by Colonel Suttle, put 
to him at the moment the terrors of his situation first 
broke upon him. That you have them correctly, you 
rely on the recollections of one man, and that man tes- 
tifying under incalculable bias. If he has misappre- 
hended or misrepresented the prisoner in one respect, 
he may in another. In one respect we know he has. 
He testifies that when Colonel Suttle asked him if he 
wished to go back, he understood him to say he did. 
This we know is not true. The prisoner has denied it 
in every form. If he was willing to go back, why did 
they not send to Cofiin Pitts's shop, and tell the pris- 
oner that Colonel Suttle was at the Revere House, and 
would give him an opportunity to return.^ No, sir, 
they lurked about the thievish corners of the streets, 
and measured his height and his scars to see if he an- 
swered to the record, and seized him by fraud and vio- 
lence, six men of them, and hurried him into bonds 
and imprisonment. Some one hundred hired men, 
armed, keep him in this room, where once Story sat in 
judgment — now a slave-pen. One hundred and fifty 



232 RICHARD HENRY DANA, JR. 

bayonets of the regulars, and fifteen hundred of the 
mihtia keep him without. If all that we see about 
us is necessary to keep a man who is willing to go back, 
pray, sir, what shall we see when they shall get hold of 
a man who is not willing to go back.^^ 

I regret, extremely, that you did not, sir, adopt the 
rule that in the trial of an issue of freedom, the admis- 
sions of the alleged slave, made to the man who claims 
him, while in custody, during the trial, should not be 
received. That ruling would have been sustained by 
reason, and humanity, and precedent. Failing that, I 
hoped the facts of this case would show enough of in- 
timidation to throw out the evidence. At least, they 
show enough to deprive it of all weight. I have re- 
minded you of his condition the next morning. What 
must it have been there .^^ One of his keepers. True, 
says he was that night a good deal intimidated. Who 
intimidated him? Do you recollect the significant 
words of Colonel Suttle, "I make no coiri'promises with 
you! I make you no promises and no threats." This 
means : It is according to the course you take now that 
you will be treated when I get you back. If you put 
me to no trouble and expense, it will be few stripes 
or no stripes. If you do, it will be many stripes. Was 
ever man more distinctly told it would be better for 
him if he acquiesced in everything, yielded every- 
thing, assented to everything.^ That is what those 
words, uttered in a tone, no doubt, that he well under- 
stood, conveyed to his mind. But I am wasting words. 
I know that your Honor will give little or no weight to 
testimony so liable, at all times, to misconception, 
misrecoUection, perversion, and, in this case, so cruel 
to use against such a person under such circumstances. 

You recognized, sir, in the beginning, the presump- 



RENDITION OF ANTHONY BURNS 233 

tion of freedom. Hold to it now, sir, as to the sheet- 
anchor of your peace of mind as well as of his safety. 
If you commit a mistake in favor of the man, a pecun- 
iary value, not great, is put at hazard. If against him, 
a free man is made a slave forever. If you have, on 
the evidence or on the law, the doubt of a reasoning 
and reasonable mind, an intelligent misgiving, then, 
sir, I implore you, in view of the cruel character of 
this law, in view of the dreadful consequences of a mis- 
take, send him not away, with that tormenting doubt 
on your mind. It may turn to a torturing certainty. 
The eyes of many millions are upon you, sir. You are 
to do an act which will hold its place in the history of 
America, in the history of the progress of the human 
race. May your judgment be for liberty and not for 
slavery, for happiness and not for wretchedness; for 
hope and not for despair; and may the blessing of Him 
that is ready to perish come upon you. 



XI 
THE "GRASP OF WAR" SPEECH ^ 

June 21, 1865, 

[There are two points in this speech of special interest : one the 
theory by which our government could dictate terms for the re- 
storation of the states lately in secession and at war ; and the other, 
Mr. Dana's opinion that the voting franchise should be granted 
the freedmen on property and educational qualifications. 

As to the first point, Mr. Dana's speech is plain enough, that the 
federal government in times of peace had no right to control the 
domestic regulations of the various states on such subjects as 
slavery, education, and the right to vote or testify ; that the consti- 
tutions of the various states forming the Southern Confederacy, 
before, during, and at the end of the war, recognized slavery and 
discriminated against persons of color; that a great war had been 
carried on, the main issues of which were slavery and union; and 
that the Confederate States were still in the "grasp of war." 

But there is one subject, which was very familiar and well 
known to Mr. Dana's hearers at the time, but is not so well under- 
stood now, and that is, the main doctrine of the war-powers under 
the United States Constitution. Therefore let me state that there 
is one principle recognized in the construction of that Constitu- 
tion, and that is, that where that instrument is silent or doubtful, 
we must consider the principles of jurisprudence existing at the 
time of its adoption, and the law of national self-preservation 
within those principles. The Constitution had no provision as to 
what would happen if a number of the states should secede, 

^ Delivered at a meeting held iu Faneuil Hall, Boston, to consider the 
subject of "Re-organization of the Rebel States." Reprinted from an 
original report. 



THE "GRASP OF WAR" SPEECH 235 

wrongfully form a de facto nation and wage war against the federal 
government on important issues. In the absence, then, of such a 
provision, Mr. Dana invoked the recognized principles as applied 
to war. These, Mr. Dana claimed, gave the successful party the 
right to enforce the issues on which the war was fought as against 
the defeated power, as long as it was within the "grasp of war." 

While Mr. Dana set forth the principles by which the issue of 
the Civil War could constitutionally be established, it by no 
means follows that he approved the extremes to which the prin- 
ciples were carried out, and the "carpet-bag" government which 
followed. He was quite disgusted with these. As an illustration, 
the only estrangement between Mr. Dana and his life-long friend, 
Charles Sumner, arose because Mr. Dana opposed Sumner's 
extreme reconstruction views. He had differed from Mr. Sum- 
ner's policies during the Free Soil movement before the war; but 
that did not prevent Mr. Sumner from calling at our house and 
talking with my father and entertaining us children nearly every 
Sunday after his two o'clock dinner at Longfellow's. Their dif- 
ferences on the reconstruction policies, however, were such that 
Sumner broke ofif social relations with my father until duringthe 
last year or two before Sumner died. 

I would also call attention to a popular belief, with which Mr. 
Dana had to contend, not only in this speech, but in the early 
days of the war in the Prize Causes. Some people in the North 
thought it necessary, in order to be consistent in our view that 
states had no right to secede, and to maintain that the Southern 
Confederacy should not be recognized by foreign nations as an 
independent sovereignty, to minimize the war into a local, insur- 
rectionary movement. Even President Lincoln and Secretary of 
State Seward felt this in some of the early proclamations and 
diplomatic correspondence. After the decision of the United 
States Supreme Court, unanimously sustaining the war-powers 
in the way of blockade, prize and capture of enemies' property at 
sea, in the war against the Confederacy, many prominent per- 
sons ^ claimed that that decision went a great way towards ad- 
mitting the right of the states to secede, and recognizing their 
1 See The Law Magazine, London, November, 1863. 



236 RICHARD HENRY DANA, JR. 

independence. To counteract these views, Mr. Dana, in 1864, 
published a pamphlet called "Enemy's Territory and Alien Ene- 
mies — What the Supreme Court decided in the Prize Causes."^ 
How persistent was this popular belief which Mr. Dana tried to 
counteract appears in the Biography, where, speaking of this 
"Grasp of War" speech, Mr. Adams says: — ■ 

"Dana's mind was naturally subtle. He was always ready to 
devise some ingenious, logical process for avoiding either horn 
of the dilemma, just as, in 'the Prize Cases,' he showed the Su- 
preme Court how the United States could at the same time be 
carrying on a war, with all the rights incident to war, so far as the 
Southern Confederacy was concerned; and yet, so far as foreign 
powers and neutrality were involved, it was no war at all, but 
only a local insurrectionary movement. But when the issue was 
decided in the field, — when Lee had surrendered at Appomat- 
tox, and Davis was a prisoner at Fortress Monroe, — the ' local 
insurrectionary movement ' hypothesis was quietly though some- 
what contemptuously relegated to the receptacle of things for 
which no further use exists. Reconstruction then became a 
question of practical politics, and the provisions of the Consti- 
tution had to be curiously scanned and construed anew. The war- 
power admitted of the desired development, and Mr. Dana was 
again equal to the occasion." 

Even practising lawyers entertained this popular opinion. Mr. 
Thornton K. Lothrop wrote a letter on the subject of Mr. Dana's 
argument, which is published in the Biography. Though asso- 
ciated with Mr. Dana at the time of the Prize Causes, Mr. 
Lothrop says he had not "taken any professional part in these 
cases." He wrote from Europe, "with no opportunity of con- 
sulting . . . papers or any books," after a lapse of twenty-seven 
years. In this letter, he expressed the idea that Mr. Dana was 
performing (the simile is my own) in the arena before the Su- 
preme Court the diflScult task of riding with one foot on the 
war-power horse and the other on a "citizens-in-arms" pony 
going the other way. Had Mr. Lothrop had an opportunity to 
study the briefs, and the opinion of the court, he would have 
^ Published with this collection. 



THE "GRASP OF WAR" SrEECH 237 

found that Mr. Dana was sitting squarely on the war-horse 
alone, and that it was his opponents who were exhibiting the 
" citizens-in-arms " pony. Mr. Dana never felt that it was neces- 
sary so to minimize the war. 

It was his opponents, not he, that claimed there was "no war 
but only a local, insurrectionary movement," a mere "conflict 
with citizens in rebellion." 

As to the danger that calling the conflict "a great war" might 
lead to the recognition of the independence by foreign countries, 
how was it in our dealings with the Spanish colonies in America, 
in revolt against Spain? As long as Spain was carrying on a vig- 
orous and effective war, it was our general policy to remain neu- 
tral. Only after long periods of a mere theoretical, ineffective, 
paper war, in which Spain had practically abandoned active at- 
tempts at coercion, did we recognize their independence. 

It is true that, during the first month or two of the Civil War, 
Mr. Dana hoped, with many others, that it would end in sixty 
days; but thereafter, that there was a war, and a "large war," 
formed the chief contention of Mr. Dana in the Prize Causes. 
These causes arose out of captures at sea, that were made within 
the first few months after the firing on Fort Sumter. In Mr. 
Dana's argument before Judge Sprague, and later before the 
United States Supreme Court, all within the first two years of the 
war, his whole contention for the right of coercion by way of 
blockade, prize, and capture of enemy's property at sea, was 
based upon the argument that there was a war, and a large war, 
and on the existence of a de facto, though not de jure, sovereign 
power, and not mere citizens in rebellion, with which we were 
carrying on the war, and boldly claimed that both sides had the 
status and rights of belligerents. The very arguments, and even 
the phrases and descriptions used in the "Grasp of War" speech 
in 1865, follow closely those made in the Prize arguments in 
1861-63, and in the "Enemy's Territory" pamphlet of 1864. 

In order to show that I correctly state Mr. Dana's view as to 
there being a war in the early days, in which he was consistent 
to the end, let me turn to his brief in the Prize Causes. There 
Mr. Dana says (page 13) : — 



238 RICHARD HENRY DANA, JR. 

"They [the Confederates] attacked the forts, troops and ships 
of the sovereign [i. e., federal] government by sea and land, and 
fighting on the scale of a 'large war' is going on." 

(The italics are my own.) 

His brief had shown what were the war-powers in a war be- 
tween independent nations. Having established these, he puts 
the heading for the fourth section of his brief as follows : — 

"In civil or domestic war, it is competent for the sovereign to 
exercise belligerent powers." 

He also says : — 

"War is the exercise of force by bodies political, or bodies as- 
suming to be bodies political, against each other, for the purpose 
of coercion." 

Then he states, in his brief, the facts as they existed, as fol- 
lows : — 

"Millions of the sovereign's [the Confederacy's] subjects unite 
in the establishment of a new government over a portion of the 
territory [of the United States] . . . They organize a sovereign 
state over all this territory, not as a temporary expedient, but for 
a permanency, and claim jurisdiction oi right over all the inhabit- 
ants of the territory. Their government has all the functions of 
a state, judicial, executive and legislative, and they claim recog- 
nition as a sovereign by other powers. They establish this gov- 
ernment de facto over the territory, and claim it de jure. They 
treat all resistance to it by inhabitants as treason. They treat all 
attempts by force of arms to put down this government and re- 
establish the old sovereignty as acts of war. They declare that 
war exists between them as one sovereignty, the parent state as 
another. They raise armies and navies, establish a conscription 
over all the inhabitants, issue letters of marque, and establish 
prize courts. . . . Foreign nations recognize this state of things 
as war, and concede to each of the powers engaged in it the right 
of belligerents." 

Again, he states the object of war is "coercion of the power you 
are engaged with"; and says (page 12), — 

"These circumstances show the doctrine of 'enemy's property' 
is applicable to domestic or civil wars." 



THE "GRASP OF WAR" SPEECH 239 

Considering the objections to this, he says (page 18), — 

"The objections really amount to this, that war powers can 
never be exercised in civil wars in any stage except by the rebels." 

Nowhere in this brief, nowhere in the opinion of the Supreme 
Court, which latter would be read over the civilized world, was 
there any attempt to minimize the war so far as foreign coimtries 
and neutrality were involved. There was no need of it. He not 
only persuaded the Supreme Court that there was a war, "but," 
to quote from the opinion, "it is not necessary, to constitute a 
war, that both parties should be acknowledged as independent 
nations or sovereign states"; ^ and again, "It is not necessary 
that the independence of the revolting province or state should 
be acknowledged in order to constitute a party belligerent in 
the war." ^ 

Again, in a political speech at Providence, Rhode Island, 
March 25, 1863, Mr. Dana said, "We are at war — in a war of 
immense proportions." 

These same contentions, repeatedly made, of an actual and 
great war against a de facto, though revolutionary, government, 
which gave us the right of prize, blockade, and capture of enemy's 
territory during the war, after the war, Mr. Dana contends in 
this "Grasp of War" speech, gave us the right to impose condi- 
tions upon those states which had voluntarily submitted their 
issues to the arbitrament of war; and so, from the first year of 
active conflict to the reconstruction period, Mr. Dana's position 
was a consistent one of asserting a large war. His argument was 
consistent with the facts. He convinced the entire Supreme 
Court, some of whom were democrats in sympathy with state 
supremacy, and who were not likely to be carried away by mere 
"subtlety" of argument. The Supreme Court, dealing with the 
argument of Mr. Dana's opponents, that it "is not a war but is 
an insurrection," ^ says they "cannot ask a court to affect a tech- 
nical ignorance of the existence of a war, which all the world ac- 
knowledges to be the greatest civil war known in the historv of 

1 Prize Causes, 2 Black, 666. 

2 Prize Causes, 2 Black, 669. 

^ Quoted from the opinion of the court in the above case. 



240 RICHARD HENRY DANA, JR. 

the human race, and thus cripple the arm of government and para- 
lyze its power by subtle definitions and ingenuous sophisms." It 
seems to me that Mr. Dana had "his feet on earth." His argu- 
ment, in the Prize Causes, in his "Enemy's Territory" and in 
his "Grasp of War" speech, was to reduce confusion of mind to 
simple, fundamental principles of jurisprudence, based upon 
existing facts. 

In the Prize arguments, he went into the philosophy of war, 
showed its meaning and powers, and explained the technical and 
somewhat misleading definitions of the law of prize in the light 
of that philosophy. In his "Grasp of War" speech he had no 
need for a waste paper receptacle for anything he had pre- 
viously affirmed. Before publication this note to the "Grasp of 
War " speech was submitted to Mr. Adams, who said he had no 
definite statements of Mr. Dana's in mind, but assumed that he 
had held the views of Lincoln, Seward, and others, of the neces- 
sity of maintaining before the European powers the local insurrec- 
tion theory, which later had to be discarded. It was to Mr. 
Dana's credit that he was the first boldly to assert the existence 
of a great war, and the real safety and true policy of so doing. 
If Mr. Dana's "Grasp of War" doctrine is not correct, then it 
is hard to see why all the constitutions of the Southern States 
adopted under coercion which must otherwise have been illegal 
are not theoretically, at least, invalid, and perhaps also the 13th 
and 14th Amendments to the United States Constitution. 

As the entire Supreme Court had declared that it was the op- 
ponents of Mr. Dana in the Prize Causes whose arguments were 
"subtle," I would have nothing further to say on this subject, 
did it not furnish me a text for emphasizing once more Mr. 
Dana's power of original thought. I can see him now, short (he 
was only five feet seven inches in height), erect, with square, 
broad shoulders, a graceful figure, with small hands and feet, 
curling hair and elastic step, walking up and down the room, 
his head a little to one side, his eyes slightly raised, thinking out 
some problem, or developing the arguments in its support. One 
frequent form of problem arose when the accepted definitions of 
common or international law needed recasting or dififerentiation, 



THE "GRASP OF WAR" SPEECH 241 

to meet some new state of facts. Even the statute, or codified 
law, with its confinement to set language, would often need con- 
struction when applied to cases which the language did not fit. 
When such a problem arose, he set himself to thinking out the 
reasons that underlay the definitions. I heard him once say of an 
eminent lawyer and judge, whom in other respects he admired, 
that this man seemed to think that legal truths are in set phrases, 
and that, with these as premises, he would, by logical process, 
work out the conclusions as applied to new sets of facts, and if the 
conclusions led to injustice, then so much the worse for justice; the 
logic must stand. To minds that think of legal problems as thus 
fettered to phrases, Mr. Dana's idea that the legal reasons and 
principles were the masters and the phrases the slaves, and Mr. 
Dana's ways of arguing would seem like subtle juggling with the 
law. Yet, as in science, the law has had constant need of reword- 
ing, and it is only as so recast by great minds into language more 
fitting new conditions, that our plastic common and interna- 
tional law can grow more and more nearly towards perfect justice. 
I believe Mr. Dana's mind was eminently one of such high mas- 
tery, and that perhaps no instance better illustrates this than his 
dealing with the Prize Causes and the Reconstruction problems. 
On the question of the franchise to the freedmen on education 
and property qualifications, the speech itself only leads up to that 
point, and prepares the mind for the definite statements of the 
address. The address^ was drawn by Mr. Dana as chairman of 
the committee to prepare the same. This speaks of the disabili- 
ties of those in the South with a "traceable thread of African 
descent," which "no achievements in war or peace, no acquisi- 
tions of property, no education, no mental power or culture, no 
merits, can overcome." Again, the address says, "We do not ask 
that the nation shall insist on an unconditioned, universal suf- 
frage"; and later, "We declare it to be our belief that if the na- 
tion admits a rebel state to its full functions, with a constitution 
which does not secure to the freedmen the right of suffrage in such 
manner as to be impartial and not based in principle upon color, 
and as to be reasonably attainable by intelligence and character 
1 The parts not covered by Mr. Dana's speech are printed just after it. 



242 RICHARD HENRY DANA, JR. 

. . . with the right to be educated, to acquire homesteads, and 
to testify in court, the nation will be recreant to its duty to itself 
and to them, and it will incvu*, and will deserve to incur, danger 
and reproach proportioned to the magnitude of its responsibility." 

Mr. Dana also makes a clear distinction between " social equal- 
ity," which he disclaims, and political privileges, a distinction 
now becoming better understood. He says : — 

"The present question is one of political justice and safety, and 
not of social equality. When the free man of color, educated in 
the common schools, deposits a vote which he can write himself, 
gives a deposition which he can read and sign, and pays a tax on 
the homestead he has bought, the law forces no comparisons be- 
tween his intellectual, moral, physical, and social condition and 
that of the white citizen, of whatever race or nation, who lives, 
votes, and testifies by his side." 

It is now so generally believed that a property and educa- 
tional qualification would have been wisest and most humane 
for both the late master and the late slave, that we must recur to 
the arguments that prevailed at that time, to see how strong they 
were. It was then said that, unless universal manhood suffrage 
were given the negroes, they would be unable to secure education 
or to acquire property, and would be in danger of being reduced 
to a condition of peonage, even should the Southern States in their 
constitutions grant all the rights which we urged. The arguments 
for this universal colored suffrage were based upon the assump- 
tion that their conditions were those of the men of America of 
1776. These latter were educated in the principles of liberty and 
trained in the exercise of self-government in town-meeting and 
colonial legislature, and were men of education, the majority of 
whom were freeholders. They could skillfully strike and ward 
with the weapons of franchise, though with all their skill they 
sometimes erred ; but with the poor freedmen, who knew nothing 
of the true principles of liberty, and were wholly unskilled in the 
use of the sharp weapons that wound the clumsy user, it was a 
totally different proposition. 

As a matter of history, when given the ballot, and when in con- 
trol, instead of voting money for their education, their representa- 



THE "GRASP OF WAR" SPEECH 243 

lives voted money for salaries for themselves and their triends, 
for railroad grants, and for almost everything but the best 
interests of the colored race, apart from the few who got special 
benefits, and the colored voters were misled by unscrupulous 
politicians. The results are all too well known, and now it is 
generally admitted by the colored people themselves, and urged 
by their truest friends, that their great hope is in education, 
manual and, for the most part, rudimentary, in morality, useful- 
ness in the community, and in the acquisition of property by 
honest work. The progress of the race in these respects has 
recently been as great as was their retrogression when exercising 
universal suffrage. 

It is interesting to note that Abraham Lincoln, March 13, 1864, 
had somewhat the same idea of limited suffrage. He then said, 
"I hereby suggest . . . whether some of the colored people 
might not be let in [to the elective franchise], as for instance the 
very intelligent, and especially those who have fought gallantly 
in our ranks." 

Governor Orr of South Carolina, one of the Southern leaders, 
approved of an amendment to the Constitution of North Caro- 
lina, which had been proposed, allowing colored men to vote who 
could read and write, or who had property worth $250; and intel- 
ligent white Southerners in North Carolina, Alabama, Florida, 
Mississippi, Texas, and Arkansas formed the same programme; ^ 
but other counsels prevailed. 

Let me say that the word " rebel " in this speech was not 
used in ill will, but because, from the standpoint of those who 
did not believe in the right of secession, the Southern States in 
1865 were in "rebellion" as our colonies were in 1775.] 

''Grasp of War" Speech 

]Mr. President, — It was hoped by those who have 
summoned us together this morning that a voice 

^ See Rhodes, History of the United States, vol. vi, p. 28, and also re- 
ferences in index under "Negro Franchise." 



244 RICHARD HENRY DANA, JR. 

might go out from Faneiiil Hall, to which the people 
of the United States would listen, as in times past. 

We deprecate, especially, anything like political 
agitation of the questions before us; but a calm con- 
sideration of them by the people is a duty and a neces- 
sity. For, Mr. President and fellow citizens, the ques- 
tions pressing upon this country are the most vast and 
momentous that have ever presented themselves for 
solution by a free people. 

We wish to know, I suppose, first, What are our 
powers? That is the first question — what are our just 
powers.^ Second — What ought we to do.^^ Third — 
How ought we to do it.f^ With your leave, I propose 
to attempt an answer to these three questions. 

What are our just powers.'^ W^ell, my friends, that 
depends upon the answer to one question — Have we 
been at war, or have we not.^ In what have we been 
engaged for the last four years .^^ — has it been a war, 
or has it been something else and other than war.^^ I 
take it upon myself to assert, that we have been in a 
condition of public and perfect war. It has been no 
mere suppression, by municipal powers, of an insur- 
rection for the redress of grievances. It has been a 
perfect public war. The government has a right to 
exercise, at its discretion, every belligerent power. 
[Applause.] W^e are not bound to exercise them; the 
enemy cannot compel us to do it; but, at our discre- 
tion, we may exercise every belligerent power. Do you 
doubt it? Does any man doubt it? [Voices — "No."] 

I will tell you why you must not doubt it. In the 
first place, the Supreme Court of the United States 
has, by an unanimous decision, held that we are in a 
public war, and that the government can exercise 
every belligerent power. The court differed as to the 



THE "GRASP OF WAR" SPEECH 245 

time when we entered upon such a war, and whether 
recognition of war by Congress was necessary, but 
that we came to a war at last, was their unanimous 
decision. The Prize Courts, Kke the Temple of Janus, 
are closed in peace and open only in war. The Prize 
Courts have been thrown open, and every prize that 
has been condemned in this country has been con- 
demned upon the principle of a public war. Congress 
gave us no rules for municipal condemnation, but left 
the Prize Courts to the rules which govern public in- 
ternational war. We have condemned the prizes upon 
the same rules, and no other, than those by which we 
condemned them in the war with Great Britain in 
1812. This course of the Prize Courts has been sus- 
tained by the Supreme Court, acted upon by the Ex- 
ecutive, and recognized by Congress. The statutes, 
too, have called it a war, in terms. The soldiers who 
are enlisted — what are they enlisted for.^ Why, they 
are enlisted "for the war," are they not.^ How is it at 
this moment.^ Is not the Executive holding those 
states by military occupation.'^ Are we not holding 
them in the grasp of war.^ You cannot justify the 
great acts of our government for the last three years 
upon any other principle than the existence of war. 
You look in vain in the municipal rules of a constitu- 
tion to find authority for what we are doing now. 
You might as well look into the Constitution to find 
rules for sinking the Alabama in the British Channel, 
— to find rules for taking Richmond. You might as 
well look there to find rules for lighting General 
Grant's cigar. [Laughter.] No; we stand upon the 
ground of war, and we exercise the powers of war. 

Now, my fellow citizens, what are those powers and 
rights.^ What is a WAR.? War is not an attempt to kill, 



246 RICHARD HENRY DANA, JR. 

to destroy; but it is coercion for a purpose. When a 
nation goes into war, she does it to secure an end, and 
the war does not cease until the end is secured. A box- 
ing-match, a trial of strength or skill, is over when one 
party stops. A war is over when its purpose is secured. 
It is a fatal mistake to hold that this war is over, be- 
cause the fighting has ceased. [Applause.] This war is 
not over. We are in the attitude and in the status of 
war to-day. There is the solution of this question. 
Why, suppose a man has attacked your life, my friend, 
in the highway, at night, armed, and after a death- 
struggle, you get him down — what then.'^ When he 
says he has done fighting, are you obliged to release 
hivn? Can you not hold him until you have got some 
security against his weapons. ^^ [Applause.] Can you 
not hold him until you have searched him, and taken 
his weapons from him.^^ Are you obliged to let him up 
to begin a new fight for your life.^ The same principle 
governs war between nations. When one nation has 
conquered another, in a war, the victorious nation 
does not retreat from the country and give up posses- 
sion of it, because the fighting has ceased. No ; it holds 
the conquered enemy in the grasp of war until it has 
secured whatever it has a right to require. [Applause.] 
I put that proposition fearlessly — The conquering 
party may hold the other in the grasp of war until it has 
secured whatever it has a right to require. 

But what have we a right to require? We have no 
right to require our conquered foe to adopt all our 
notions, our opinions, our systems, however much we 
may be attached to them, however good we may think 
them; but we have a right to require whatever the 
public safety and public faith make necessary. [Ap- 
plause.] That is the proposition. Then, we come to 



THE "GRASP OF WAR" SPEECH 247 

this : We have a right to hold the rebels in the grasp of 
war until we have obtained whatever the public safety 
and the public faith require. [Applause, and cries of 
"good."] Is not that a solid foundation to stand upon? 
Will it not bear examination? and are we not upon it 
to-day? 

I take up my next question. We have settled what 
our just powers are. Need I ask an audience, in 
Faneuil Hall, what it is that the public safety and the 
public faith demand? Is there a man here who doubts? 
In the progress of this war, we found it necessary to 
proclaim the emancipation of every slave. [Applause.] 
On the first day of January, 1863, Abraham Lincoln, 
of blessed memory, declared the emancipation of every 
slave. It was a military act, not a civil act. Military 
acts depend upon military power, and the measure of 
military power is the length of the military arm. That 
proclamation of the first of January did not emanci- 
pate the slaves, but the military arm emancipated 
them, as it was stretched forth, and made bare. [Ap- 
plause.] District after district, region after region, 
state after state, have been brought within the grasp 
of the military arm, until at last, to-day, the whole 
rebel territory lies within and beneath the military 
arm. [Loud applause.] Therefore, in state after state, 
region after region, the slaves have been emancipated, 
until at last, over the whole country, every slave is 
emancipated. [Renewed applause.] I would under- 
take to maintain, before any impartial neutral tri- 
bunal in Christendom, the proposition that we have 
to-day an adequate military occupation of the whole 
rebel country, sufficient to efl^ect the emancipation of 
every slave, by admitted laws of war. Whatever dif- 
ferences of opinion there may have been as to the man- 



248 RICHARD HENRY DANA, JR. 

ner in which the proclamation operated, there is no 
doubt left as to the result; because we have all the 
ground the slaves have stood upon within our military 
occupation. 

The slaves are emancipated. In form, this is true. 
But the public faith stands pledged to them, that they 
and their posterity forever shall have a complete and 
perfect freedom. [Prolonged applause.] Not merely 
our safety ; no, the public faith is pledged that every 
man, woman, and child of them, and their posterity 
forever, shall have a complete and perfect freedom. 
[Applause.] Do you mean to "palter with them in a 
double sense"? Are you willing that the great repub- 
lic shall cheat these poor negroes, "keeping the word 
of promise to the ear, and breaking it to the hope".'^ 
Then, Jiow shall we secure to them a complete and per- 
fect freedom? The constitution of every slave state 
is cemented in slavery. Their statute-books are full 
of slavery. It is the corner-stone of every rebel state. 
If you allow them to come back at once, without con- 
dition, into the exercise of all their state functions, 
what guaranty have you for the complete freedom of 
the men you have emancipated? There must, there- 
fore, not merely be an emancipation of the actual, liv- 
ing slaves, but there must be an abolition of the slave 
system. [Applause.] Every state must have the abo- 
lition of slavery in its constitution, or else we must 
have the amendment of the Constitution ratified by 
three fourths of the states. Yes, that little railroad- 
ridden republic, New Jersey, must be shamed into 
adopting the amendment to the Constitution. [Ap- 
plause.] New Jersey, whose vote, seventy years ago, 
alone prevented the adoption of Jefferson's great 
ordinance, making subsequently acquired territories 



THE "GRASP OF WAR" SPEECH 249 

free, and which now stands alone among the free 
states against this proposition of amendment, must 
be shamed into its adoption. [Renewed applause.] 
Louisiana will adopt it before her; Kentucky, perhaps, 
may adopt it before her. They may come into the 
kingdom, when the children of the kingdom shut 
themselves out. [Applause.] 

But, my fellow citizens, is that enough.'^ Is it enough 
that we have emancipation and abolition upon the 
statute-books .^^ In some states of society, I should say 
yes. In ancient times, when the slaves were of the 
same race with their masters, when the slaves were 
poets, orators, scholars, ministers of state, merchants, 
and the mothers of kings, — if they were emancipated, 
nature came to their aid, and they reached an equality 
with their masters. Their children became patricians. 
But, my friends, this is a slavery of race; it is a slav- 
ery which those white people have been taught, for 
thirty years, is a divine institution. I ask you, has the 
Southern heart been fired for thirty years for nothing.'^ 
Have these doctrines been sown, and no fruit reaped.'^ 
Have they been taught that the negro is not fit for 
freedom, have they believed that, and are they con- 
verted in a day.f^ Besides all that, they look upon the 
negro as the cause of their defeat and humiliation. I 
am afraid there is a feeling of hatred toward the negro 
at the South to-day which has never existed before. 

What are their laws? Why, their laws, many of 
them, do not allow a free negro to live in their states. 
When we emancipated the slaves, did we mean they 
should be banished — is that it.'^ [Voices — "No."] 
Is that keeping public faith with them.^ And yet their 
laws declare so, and may declare it again. 

That is not all ! By their laws a black man cannot 



250 RICHARD HENRY DANA, JR. 

testify in court; by their laws he cannot hold land; 
by their laws he cannot vote. Now, we have got to 
choose between two results. With these four millions 
of negroes, either you must have four millions of dis- 
franchised, disarmed, untaught, landless, thriftless, 
non-producing, non-consuming, degraded men, or else 
you must have four millions of land-holding, industri- 
ous, arms-bearing, and voting population. [Loud ap- 
plause.] Choose between these two! Which will you 
have? It has got to be decided pretty soon which you 
will have. The corner-stone of those institutions will 
not be slavery, in name, but their institutions will be 
built upon the mud-sills of a debased negro population. 
Is that public safety .^^ Is it public faith .^ Are those 
republican ideas or republican institutions.^ Some of 
these negroes have shed their blood for us upon the 
public faith. Ah! there are negro parents whose chil- 
dren have fallen in battle; there are children who lost 
fathers, and wives who lost husbands, in our cause. 
Our covenant with the freedman is sealed in blood! 
It bears the image and superscription of the republic ! 
Their freedom is a tribute which we must pay, not only 
to Caesar, but to God ! [Applause.] 

We have a right to require, my friends, that the 
freedmen of the South shall have the right to hold 
land. [Applause.] Have we not? We have a right to 
require that they shall be allowed to testify in the 
state courts. [Applause.] Have we not? We have a 
right to demand that they shall bear arms as soldiers 
in the militia. [Applause.] Have we not? We have a 
right to demand that there shall be an impartial bal- 
lot. [Great applause.] 

Now, my friends, let us be frank with one another. 
On what ground are we going to put our demand for 



THE "GRASP OF WAR" SPEECH 251 

the ballot for freedmen? Some persons may say that 
they will put it upon the ground that every human 
being has an absolute and unconditional right to vote. 
There never was any such doctrine ! We do not mean, 
now, to allow about one half the South to vote. 
[Applause.] Why not.^ Why, the public safety does 
not admit of it. [Applause.] We put the condition of 
loyalty on every vote. [Applause.] How have we done 
in this state .^ Half the people in this state are ex- 
cluded from the ballot, — the better half we are fond 
of calling them; no woman votes. We prescribe con- 
ditions for the men, — whatever conditions society 
sees fit; conditions of age; conditions of residence; con- 
ditions of tax-paying; and lately we have added, by 
a large popular majority, the further high condition, 
that they shall have intelligence enough to read and 
write. [Applause.] Of course there is no such doctrine 
as that every human being has a right to vote. Soci- 
ety must settle the right to a vote upon this principle 
— "The greatest good of the greatest number" must 
decide it. The greatest good of society must decide it. 
On what ground, then, do we put it.'' We put it upon 
the ground that the public safety and the public faith 
require that there shall be no distinction of color. 
[Applause.] That is the ground upon which it can 
stand. 

To introduce the free negroes to the voting franchise 
is a revolution. // toe do not secure that now, in the 
time of revolution, it can never be secured, except by a 
new revolution. [Loud applause.] Do you want, some 
years hence, to see a new revolution.^ — the poor, op- 
pressed, degraded black man, bearing patiently his 
oppression, until he can endure it no longer, rising 
with arms for his rights — do you want to see that.^^ 



252 RICHARD HENRY DANA, JR. 

[Voices' — "No."] Do you want to see them submit for- 
ever, and 7iot rise for their rights? [Voices — "No."] 
No, neither, you say. Well, my friends, who cry "no," 
if either of those things happens, it is our fault. If 
they never get their rights, or get them by a new revo- 
lution, it will be, in either event, our fault. Do you 
wish to have that blame rest upon you.^ [Voices — 
"No."] No? Then "Now 's the day, and now 's the 
hour." [Loud applause.] They are in a condition of 
transition; a condition of revolution; seize the oppor- 
tunity and make it thorough ! [Renewed and hearty 
applause.] 

This, then, fellow citizens, is what we have a right to 
demand. Now comes my third question — How do 
you propose to accomplish it? We know our powers, 
we know what we want to do, — how do we propose 
to do it? First, the right to bear arms, fortunately, 
does not depend upon the decision of any state. That 
is a matter which, under the Constitution, depends 
upon the acts of Congress. Congress makes the militia, 
and Congress must see to it that the emancipated 
slaves have the privilege, the dignity, and the power 
of an arms-bearing population. But the right to ac- 
quire a homestead, the right to testify in courts, the 
right to vote, by the Constitution, depend, not only 
in spirit, but in the letter, upon the state constitu- 
tions. The right to vote in national elections depends 
on state constitutions. What are you going to do 
about it? 

You find the answer in my first proposition. We 
are in a state of war. We are exercising war powers. 
We hold each state in the grasp of war until the state 
does what we have a right to require of her. [Applause.] 
Do you say this is coercion? Certainly it is. War is 



THE "GRASP OF WAR" SPEECH 253 

coercion, and this is part of the war. We have a mili- 
tary occupation. What is the effect of that.^ I appeal 
to the learned in the law of nations; I appeal to an 
authority that has spoken to you words of wisdom 
this morning [turning to Professor Parsons], whether 
it is not a principle of war that when the conquering 
party has a military occupation of the country, the 
political relations of its citizens are suspended thereby? 
That is true : suspended; I do not say destroyed. 

Let no man say that I overlook the distinction be- 
tween a civil or domestic war and a war between re- 
cognized nations. My duties and studies and thoughts 
have kept my attention upon that. We have not been 
putting down an insurrection of professed citizens. 
We have fought against an empire unlawfully estab- 
lished within the limits of this republic — a completed 
de facto government, perfected in all its parts; and if 
we had not destroyed it by war, it would have re- 
mained and stood a completed government. It stood 
or fell, on the issues of war. Nothing but war has 
destroyed it. 

This de facto empire had possession of that whole 
country. Why, from the Potomac to the Rio Grande, 
we had not one fort ; not one arsenal ; not a court-house 
nor a custom-house, nor a light-house, nor a post-office, 
nor a single magistrate, nor a spot on which he could 
stand. They had forts, arsenals, light-houses, custom- 
houses, courts, post-offices, magistrates, and were in 
complete possession. It happened — it happened — 
that those people preserved their state lines — did not 
obliterate them; but they might have done so. It hap- 
pened that they did not change their constitutions, 
but they might have done it. They might have re- 
solved themselves into a consolidated republic, or a 



254 RICHARD HENRY DANA, JR. 

monarchy. They did as they chose. Under such cir- 
cumstances, if the parent government is not strong 
enough to hold possession of the country, and a hos- 
tile, de facto government is established upon it, the 
parent government proportionately loses its claims to 
allegiance, for the time. Certainly it does — not ab- 
solutely, but for the time. 

What follows from all this.^ from a war fought over 
the continent and over every ocean, — their priva- 
teers vexing our commerce at the antipodes ; we fight- 
ing the battles of the republic in the mouth of the 
British Channel [applause] ; and over this w^hole vast 
republic, south of the Potomac and the Ohio, 

"Every turf beneath your feet 
Has been a soldier's sepulchre." 

If such a war leaves this people just as they were be- 
fore; if no corresponding rights and powers have ac- 
crued to us, then I say it has been the most vast and 
bloody and cruel nullity that the world ever saw. It 
is not so. We have a right now and a duty to execute 
those powers which belong to the condition of war. 
The political relations of these people to their state 
governments are suspended. Military occupation 
exists, and the republic governs them by powers de- 
rived from war. You look in vain to the Constitution 
to point out what shall be done. The war is constitu- 
tional; but the consequences, powers and duties, arise 
out of the nature of things. The Constitution may dis- 
tribute functions, but all the powers which the Presi- 
dent or Congress hold, or both, and are exercising, are 
derived from the condition of war. 

I ask, again, how shall we obtain what we have a 
right to acquire? The changes we require are changes 
of their constitutions, are they not.^^ The changes must 



THE "GRASP OF WAR" SPEECH Q55 

be fundamental. The people are remitted to their 
original powers. They must meet in conventions and 
form constitutions, and those constitutions must be 
satisfactory to the republic. [Loud applause.] 

I desire at this point to say a word with reference to 
President Johnson and his course, to which I ask your 
special attention. When President Johnson called the 
people of North Carolina and one or two other states 
together, he did not call the blacks as well as the whites 
to the ballot. That was a question of process, which 
requires great discretion and wisdom. The President 
and his Cabinet knew a great deal more about the de- 
tails, and means, and probable results, than we do. I 
believe President Johnson has the same end in view 
that we have here to-day. [Applause.] He has his own 
mode of reaching it. Some may ask, Why did he not 
ask the blacks to vote.^ I know nothing, personally, of 
his reasons; but I can easily see that two embarrass- 
ments might well beset him. They occur to us all, at 
once. 

The people of those states are to vote for the pur- 
pose of making their organic law. President Johnson 
holds them by military power. Is it not a very serious 
thing, in a republican government, to dictate from the 
cannon's mouth the organic law for a great people.^ I 
do not ask what we have a right to do — that is not 
the question. The question is. What ought we to do. ^^ 
I do not wonder that a man educated in republican 
principles hesitates to dictate, as military superior, 
who should vote in determining the organic law of a 
people. He took the voters as they stood before the 
war; he put the test of loyalty to them; he took securi- 
ties against them; he went no further. That we may 
well suppose was one of his reasons. 



256 RICHARD HENRY DANA, JR. 

We can easily suppose another. Take the whole 
black population. Shall I say to you, my friends, to- 
day, for the first time, that slavery is a beneficent, 
effective educational system.^ If I say it, will you be- 
lieve it.^ Will you think me sane.^ Have we not all 
said, and thought, and fought because we believed 
that slavery degraded and brutalized its victims.^ If 
a man requires us to say that the four millions of 
slaves have not been debased and brutalized by slav- 
ery, he requires us to unsay all we have said and be- 
lieved and fought for and prayed for, the last thirty 
years. Slavery has degraded the negroes. It has kept 
them ignorant and debased. It has not, thank God, 
destroyed them. The germ of moral and intellectual 
life has survived; and we mean to see to it that they 
are built up into a self-governing, voting, intelligent 
population. [Applause.] They are not that to-day. 
They will become so quicker than you think. They do 
not need half the care nor half the patronage we used 
to think they did. And the ballot is a part of our edu- 
cating and elevating process. 

There are various courses, all seeming to lead to one 
point. From these, President Johnson has chosen to 
make an experimental, tentative trial of one. On a 
question of means and processes, he has declined to 
clothe the negroes, by an exercise of military power, 
with the right to vote. True, he has by military power 
applied a test of loyalty to the voters. But that is a 
very mild and a necessary exercise of military power. 
No man, I believe, questions the necessity and fitness 
of that act. But it is a far different thing to speak a 
whole nation of voters into existence — not for tem- 
porary, but for permanent and fundamental objects 
— by a stroke of his pen, or rather, I should say, by 



THE "GRASP OF WAR" SPEECH 257 

the uplifted sword. His rule has not been to interfere 
as far as he could, but to accomplish his ends with the 
least possible interference. 

One step further. Suppose the states do not do 
what we require — what then? I have not heard that 
question answered yet. Suppose President Johnson's 
experiment in North Carolina and Mississippi fails, 
and the white men are determined to keep the black 
men down — what then.'^ Mr. President, I hope we 
shall never be called upon to answer, practically, that 
question. It remits us to an ultimate, and, you may 
say, a fearful proposition. But if we come to it, though 
I desire to consider myself the humblest of the persons 
here, I, for one, am prepared with an answer. I believe 
that if you come to the ultimate right of the thing, the 
ultimate law of the case, it is this: that this war — no, 
not the war, the victory in the war — places, not the 
person, not the life, not the private property of the 
rebels — they are governed by other considerations 
and rules — I do not speak of them — hut the apolitical 
systems of the rebel states, at the discretion of the repiih- 
lic. [Great applause.] Secession does not do this. 
Treason does not do this. The existence of civil war 
does not do this. It is the necessary result of con- 
quest, with military occupation, in a war of such 
dimensions, such a character, and such consequences 
as this. 

You say that it is a fearful proposition. But be not 
alarmed. Most political action is discretionary, — 
all that is fundamental and organic is so. Discretion 
has its laws, and even its necessities. Still, I know it 
is a fearful proposition. But is not war a fearful fact.? 
If this is a fearful theory, is it not the legitimate fruit 
of a terrific fact, the war? If they have sown the wind, 



258 RICHARD HENRY DANA, JR. 

must they not expect to reap the whirlwind? War, my 
friends, is an appeal from the force of law to the law 
of force. I declare it a proposition that does not ad- 
mit of doubt in wars between nations, that when a 
conqueror has obtained military possession of his ene- 
my's country, it is in his discretion whether he shall 
permit the political institutions to go on and treat 
with them, or shall obliterate them and annex the 
country to his own dominions. That is the law of war 
between nations. Is it applicable to us.^^ I think it is. 
[Applause.] I think, if you come to the ultimate right 
of the thing, we may, if we choose, take the position 
that their political institutions are at the discretion of 
the republic. 

When a man accepts a challenge to a duel, what 
does he put at stake .^^ He puts his life at stake, does he 
not.^ And is it not childish, after the fatal shot is 
fired, to exclaim, "Oh, death and widowhood and or- 
phanage are fearful things!" They were all involved 
in that accepted challenge. When a nation allows it- 
self to be at war, or when a people make war, they put 
at stake their national existence. [Applause.] That 
result seldom follows, because the nation that is get- 
ting the worst of the contest makes its peace in time; 
because the conquering nation does not always desire 
to incorporate hostile subjects in its dominions; be- 
cause neutral nations intervene. The conqueror must 
choose between two courses — to permit the political 
institutions, the body politic, to go on, and treat with 
it, or obliterate it. We have destroyed and obliterated 
their central government. Its existence was treason. 
As to their states, we mean to adhere to the first 
course. We mean to say the states shall remain, with 
new constitutions, new systems. We do not mean to 



THE "GRASP OF WAR" SPEECH 259 

exercise sovereign civil jurisdiction over them in our 
Congress. Fellow citizens, it is not merely out of ten- 
derness to them; it would be the most dangerous pos- 
sible course for us. Our system is a planetary system; 
each planet revolving round its orbit, and all round a 
common sun. This system is held together by a bal- 
ance of powers — centripetal and centrifugal forces. 
We have established a wise balance of forces. Let not 
that balance be destroyed. If we should undertake to 
exercise sovereign civil jurisdiction over those states, 
it would be as great a peril to our system as it would be 
a hardship upon them. We must not, we will not un- 
dertake it, except as the last resort of the thinking and 
the good — as the ultimate final remedy, when all 
others have failed. 

I know, fellow citizens, it is much more popular to 
stir up the feelings of a public audience by violent lan- 
guage than it is to repress them; but on this subject we 
must think wisely. We have never been willing to try 
the experiment of a consolidated democratic republic. 
Our system is a system of states, with central power; 
and in that system is our safety. [Applause.] State 
rights, I maintain; State sovereignty we have de- 
stroyed. [Applause.] Therefore, although I say that, 
if we are driven to the last resort, we may adopt this 
final remedy ; yet wisdom, humanity, regard for demo- 
cratic principles, common discretion, require that we 
should follow the course we are now following. Let 
the states make their own constitutions, but the con- 
stitutions must be satisfactory to the Republic [ap- 
plause], and — ending as I began — by a power which 
I think is beyond question, the Republic holds them 
in the grasp of war until they have made such con- 
stitutions. [Loud applause.] 



260 RICHARD HENRY DANA, JR. 

The Faneuil Hall Address 

[Omitting portions that appear in almost the same 
language in Mr. Dana's speech.] 

To THE People of the United States: — 

In pursuance of the custom of the American people 
to confer freely with one another in times of civil 
emergency, and the example of our own ancestors to 
speak to their fellow citizens from this place, we have 
been commissioned by the citizens this day assembled 
in Faneuil Hall to address you upon the state of pub- 
lic affairs. 

We claim no peculiar right to be heard, even by 
reason of the sacredness of the spot from which we 
speak; but the greatness of the exigency, the critical 
questions your representatives in Congress will soon 
be required to meet, and the singular unanimity 
which appears among the patriotic people in this por- 
tion of our land, lead us to hope for your attention 
and consideration. 

To remove obstructions which we know may be 
artfully thrown in the way, we wish to say to you in 
advance — as matter of honor between citizens — 
that this meeting and this address have not been 
prompted by any organization, or by any purpose 
of party or personal politics. They are the sponta- 
neous expression of the convictions of men in earnest, 
who have differed much in times past, and may be 
separated again in their political action, but who are 
forced to a common opinion on the present exigency 
of affairs. 

It may be fairly said that three ideas had complete 
possession of Southern society, — Slavery, Aristo- 



THE "GRASP OF WAR" SPEECH 261 

cracy, and State Supremacy. Upon these, they carried 
on their political warfare, until 1860. On these, they 
founded their empire in 1861. On these, and for these, 
they have waged against the Republic for four years 
a war of stupendous proportions. 

That we may understand the character of this 
antagonistic force, with which we have now to deal 
politically, we ask you to remember what they accom- 
plished. They made no insurrection of professed citi- 
zens for a redress of grievances. They made no revo- 
lution or civil war within an admitted sovereignty. 
They set up a distinct and independent sovereignty, 
within the territory of the Republic. This extended 
over eleven states, and we hardly saved our capital; 
while in the states of Maryland, Kentucky', and Mis- 
souri, the most the nation obtained at first was a de- 
claration of sovereign neutrality. Looking at the fact, 
and not at right or law, we must remember that the 
rebellion drove out from its usurped borders every 
representative and obliterated every sign of Federal 
authority, possessed every foot of ground, and estab- 
lished and put in operation a central government, com- 
pleted in all its parts, legislative, executive, and judi- 
cial. 

In the course of a war of four years, for the restora- 
tion of the Republic, we must not forget that not one 
place surrendered from political considerations. There 
were individual deserters, but not a regiment laid 
down its arms from motives of returning loyalty. 
They fought to the last, — as bitterly at last as ever, 
— and were surrendered by their commanders only 
when there was no other resource. It was by force that 
their government was broken down. It is by force that 



262 RICHARD HENRY DANA, JR. 

the territory they held is now in our military occupa- 
tion. . . . The purpose of the South now is to resume 
the exercise of state functions with the utmost pos- 
sible speed, and with the least possible change in their 
home-systems. To secure that, they will do and sub- 
mit to whatever is necessary. It must constantly be 
borne in mind that when once a state is admitted to 
its place, the power of the nation over all subjects of 
state cognizance is gone. If the dogma of State Su- 
premacy is not destroyed, for practice as well as in 
theory, the war will have been in vain. It has not only 
been the favorite weapon of slavery, but has been 
eagerly caught up by the enemies of our institutions 
in Europe, — the tenet that the United States is not 
a nation, a government, a sovereignty, — that the 
citizens owe to it no direct allegiance, — that they 
cannot commit against it the crime of treason, if they 
carry with them into their treason the forms of state 
authority. The right of this republic to be a sovereign, 
among the sovereignties of the earth, must be put beyond 
future dispute, abroad as well as at home. We have paid 
the fearful price, and we must not be defrauded of the 
results. 

Let us now, fellow citizens, look at the dangers 
which attend an immediate restoration of the rebel 
states to the exercise of full state authority. Slavery 
is the law of every rebel state. In some of these 
states free persons of color are not permitted to reside; 
in none of them have they the right to testify in court, 
or to be educated, in few of them to hold land, and in 
all of them they are totally disfranchised. But, far 
beyond the letter of the law, the spirit of the people 
and the habits of generations are such as to insure the 
permanence of that state of things, in substance. 



THE "GRASP OF WAR" SPEECH 263 

We trust it cannot be necessary to pause here and 
refute a political fallacy, which the logic of events has 
already exposed. It has been contended that, forcible 
resistance having ceased, the rebel states are, hy that 
fact, again in their orbits, and in the rightful pos- 
session and exercise of all their functions as states, in 
local and national affairs, just as if no war had taken 
place, — that the nation, whether by Congress or the 
Executive, has no option to exercise, no powers or 
rights to enforce, no conditions that it can make. We 
trust that the mere statement of this proposition, in 
the light of the circumstances in which we stand, is 
a sufficient refutation. We are holding the rebel coun- 
trj^ in military occupation, and the nation is asserting 
a right, before it yields that occupation, to see the 
public safety secured, and the public faith preserved. 
The only question can be as to the mode of obtaining 
this result. We trust all loyal people of the land will 
have no hesitation in standing by the President, with 
clear convictions, as well as strong purpose, on this 
issue. By necessity, the Republic must hold and 
exercise some control over these regions and people 
until the states are restored to their full functions 
as states, in national as well as in state affairs. This 
authority is to be exercised by the President or by 
Congress, or both, according to the nature of each 
case. Though resulting, necessarily, from the fact of 
the war, these powers are not necessarily to be exer- 
cised by military persons or in military forms. This 
temporary, provisional authority, although supreme 
for the time, may be exercised, much of it, by civil 
officers, using the methods of civil power, and admit- 
ting the employment of judicial and executive func- 
tions, with the arts and business and social inter- 



264 RICHARD HENRY DANA, JR. 

course of life. This we understand to be, in substance, 
the position which the government now occupies, and 
we beHeve the people recognize it to be of necessity 
and of right. 

Let us now, fellow citizens, turn our attention to 
our rights and duties. Having succeeded in this war, 
and holding the rebel states in our military occupa- 
tion, it is our right and duty to secure ivhatever the public 
safety and the public faith require. 

First. The principle must be put beyond all ques- 
tion, that the Republic has a direct claim upon the 
allegiance of every citizen, from which no state can 
absolve him, and to his obedience to the laws of the 
Republic, "anything in the constitution or laws of 
any state to the contrary notwithstanding." 

Second. The public faith is pledged to every person 
of color in the rebel states, to secure to them and their 
posterity forever a complete and veritable freedom. 
Having promised them this freedom, received their 
aid on the faith of this promise, and, by a successful 
war and actual military occupation of the country, 
having obtained the power to secure the result, we 
are dishonored if we fail to make it good to them. 

Third. The system of slavery must be abolished 
and prohibited by paramount and irreversible law. 
Throughout the rebel states, there must be, in the 
words of Webster, "impressed upon the soil itself an 
inability to bear up any but free men." 

Fourth. The systems of the states must be truly 
"republican." 

Unless these points are secured, the public faith will 
be broken, and there will be no safety for the public 
peace or the preservation of our institutions. 

It must be remembered that, under the Constitu- 



THE "GRASP OF WAR" SPEECH 265 

tion, most of these subjects are entirely matters of 
state jurisdiction. Once withdraw the powers of war, 
and admit a state to its full functions, and the author- 
ity of the nation over these subjects is gone. It is a 
state function to determine who shall hold land, who 
shall testify in state courts, who shall be educated, and 
how, who shall labor, and how, and under what con- 
tracts or obligations and how enforced, and who shall 
vote in national as well as in state elections. We have 
already said that all these points now stand in the con- 
stitutions and laws of the rebel states decided against 
the freedmen. Action is necessary to put them right. 
So great a change is, no doubt, fundamental, and goes 
to the bottom of their social and political system. If 
it is not made now, before civil society becomes set- 
tled, before the states are restored to the exercise of 
all their powers, it will never be made, in all human 
probability, by peaceful means. 

The question now occurs. How are these results to 
be secured, before those states are permitted to resume 
their functions.^ We agree that these results ought to 
be secured in conformity with what may be called the 
American System, — that upon which and for which 
our Constitution was made. This is a system of sepa- 
rate states, each with separate functions, constituted 
by the people of each, and self-governing within its 
sphere, with a central state constituted by the people 
of all, supreme within its sphere and the final judge 
of its sphere and functions. The President recognizes 
the importance of proceeding in accordance with this 
system. He aims at a restoration of the states, by 
the people of the states, without resort to the exer- 
cise of sovereign legislative jurisdiction over them by 
the general government. In this we offer to him our 



266 RICHARD HENRY DANA, JR. 

sympathy, as we ask for him an intelligent support. 
But inasmuch as once restored the state will be be- 
yond our reach, the utmost care must be taken to 
avoid a hasty and unsatisfactory restoration. We 
acknowledge that there may be dangers in protracted 
and extensive military occupation. But we believe 
that the people are willing to incur their share of these 
perils. We believe the people feel that the greatest 
hazard is in premature restoration fraught with future 
danger. Any restoration would be dangerous which 
did not secure, beyond all reasonable peril, the abo- 
lition of slavery, actual freedom, just rights to the 
free, and, within each state, "a republican form of 
government." 

The President and his Cabinet, we have every rea- 
son to believe, have these results in view. We cannot 
doubt that Congress will refuse to receive any state 
upon any other terms. If there are any members of 
Congress whose fidelity on these points is doubtful, 
we implore you to exercise over them all the just au- 
thority and influence of constituents. 

We advance no extreme or refined theory as to what 
may be included within the term "a republican form 
of government." In the exercises of the extraordinary 
prerogative of the General Government to determine 
whether a state constitution is "republican," there 
must be practical wisdom and no refined theories. If 
the constitutions with which the rebel states now 
come are not "republican," in such a reasonable and 
practical sense as nations act upon — if they are so 
far unrepublican as to endanger public peace and the 
stability of our institutions, then we may treat them 
as not "republican" in the American sense of the term. 

What, then, is the character of their present con- 



THE "GRASP OF WAR" SPEECH 267 

stitutions, assuming that slavery is prohibited? Here 
presents itself no question of mere principle or theory, 
but facts of an overruling and decisive character. 
From one third to one half of their free population 
are absolutely and forever not only disfranchised, but 
deprived of all the usual rights of citizens in a re- 
public. Not only so, but this disfranchisement is per- 
petual, hereditary, and insurmountable. It is more 
deeply seated than Oriental caste. It clings to each 
man and his posterity forever, if there be a traceable 
thread of African descent. No achievements in war 
or peace, no acquisitions of property, no education, 
no mental power or culture, no merits, can overcome 
it. To make the case worse, these people are not 
only disfranchised, but the temper, spirit, and habits 
of the ruling class, the only class partaking of civil 
authority, will keep them not only disfranchised, 
but uneducated, without land, without the right to 
testify, and without the means of protecting their 
formal freedom. The result has been, and must ever 
be, that the system is essentially and practically oli- 
garchal, in such a sense as actually and seriously to 
endanger the public peace and the success of our 
republican institutions. 

Attempts are made to embarrass the subject by 
referring to several of the free states, whose consti- 
tutions restrict free blacks in the exercise of some of 
the usual rights of citizens. But these are not prac- 
tical questions before the country. The General Gov- 
ernment has no present cognizance of those questions 
in those states. Besides, as we have said, the exer- 
cise of this extraordinary authority must be upon 
practical and reasonable grounds, and not on mere 
theory. The partial disfranchisement of people of 



268 RICHARD HENRY DANA, JR. 

color in those states we regard as one of the subtle 
effects of the slave-power in our politics, which we 
hope to see pass away with its cause. The number of 
persons whom it bears upon is so small, the effect 
upon them so slight, and such the state of society, 
and the habits and feelings of the people, that the 
substantial character of those states as "republican" 
is not sensibly affected. Departures from principle, 
however small, must always be regretted; but in the 
vast and critical affairs of nations, slight aberrations 
from exact principles are constantly occurring, and 
are constantly submitted to and allowed for, in funda- 
mental institutions, as well as in occasional practice. 
The case of the rebel states is vastly and absolutely 
different. It presents a question of a false principle 
organized and brought into action, with vast dimen- 
sions, having already created one war, and all but de- 
stroyed the Republic, and ever threatening danger 
hereafter. We can hardly think it in good faith that 
the effort is made to deter the nation from confront- 
ing this vast peril, over which it has present and 
necessary jurisdiction, by invoking these slight cases 
found remaining in loyal states, over which the nation 
has no present cognizance, and from which it has 
nothing to fear. 

We do not ask that the nation shall insist on an un- 
conditioned, universal suffrage. We admit that states 
determine for themselves the principles upon which 
they will act, in the restrictions and conditions they 
place upon suffrage. All the states make restrictions 
of age, sex, and residence, and often annex other con- 
ditions operating in substance equally upon all, and 
reasonably attainable by all. Those matters lie within 
the region of advice from neighbors, and not of na- 



THE "GRASP OF WAR" SPEECH 269 

tional authority. We speak only to the point where 
the national authority comes in. We cannot require 
the rebel states, if we treat them as states, to adopt a 
system for the sole reason that we think it right. Of 
that, each state, acting as a state, must be the judge. 
But in the situation in which the rebel states now are, 
the nation can insist upon what is necessary to public 
safety and peace. And we declare it to be our belief 
that if the nation admits a rebel state to its full func- 
tions with a constitution which does not secure to 
the freedmen the right of suffrage in such manner as 
to be impartial and not based in principle upon color, 
and as to be reasonably attainable by intelligence and 
character, and which does not place in their hands a 
substantial power to defend their rights as citizens at 
the ballot-box, with the right to be educated, to ac- 
quire homesteads, and to testify in courts, the nation 
will be recreant to its duty to itself and to them, 
and will incur and deserve to incur danger and re- 
proach proportioned to the magnitude of its respon- 
sibility. 

It should not be forgotten that, slavery being abol- 
ished, and therewith the three-fifths rule of the Con- 
stitution, nearly two millions will be added to the 
representative population of the slave states in the 
apportionment for members of Congress and of votes 
in presidential elections, and that this increase of po- 
litical power to the rebel states must be at the expense 
of the free states. If the freedmen remain, as they now 
are, disfranchised, this increased power will be wielded 
by a class of voters smaller in proportion than before. 
This furnishes an additional temptation to that class 
to retain it in their hands; and we shall be compelled 
to meet, as heretofore, the old spirit, not improved by 



270 RICHARD HENRY DANA, JR. 

its recent experience, and largely increased in its 
political power. 

As we speak from a free state, it may be suggested 
that we are not so good judges of what should be done 
for the colored people of the South as those who have 
been brought up among them. It does not follow that 
those who have been brought up under an abuse are 
the best judges whether it shall be continued, or of 
what shall be substituted in its place. The people of 
the North have seen the colored races acting as free 
men under free institutions, which the people of the 
South have not. They who have known the man of 
color only as a slave before his master, or sometimes 
as a disfranchised free man under a slave system em- 
bracing his race, are not the only nor necessarily the 
best qualified class to give an opinion as to what he 
may do or what should be done for him as a free man, 
under free systems. History teaches us that national 
emancipations do not emanate from the masters. And 
wherever emancipation has seemed to disappoint ex- 
pectations, the difficulties are traceable, in large meas- 
ures, to persistent and multiform counteractions by 
the late master-class. 

Appeals may be made to taste or pride, on the sub- 
ject of the social equality of the people of color. We 
must not permit our opinions to be warped by such 
considerations. The present question is strictly one of 
political justice and safety, and not of social equality. 
When the free man of color, educated in the common 
schools, deposits a vote which he can write himself, 
gives a deposition which he can read and sign, and 
pays a tax on the homestead he has bought, the law 
forces no comparisons between his intellectual, moral, 
physical, or social condition, and that of the white cit- 



THE "GRASP OF WAR" SPEECH 271 

izen, of whatever race or nation, who lives, votes, or 
testifies by his side. 

The President has undertaken, in certain of the rebel 
states, an experiment for speedy restoration. Recog- 
nizing the general policy and duty of restoration as 
soon as practicable, the experiment commands our 
earnest wishes for its success. By its success we mean 
— not the return of the states to their position ; that 
they are only too ready to do; but their return ivith 
constitutions in which the public safety and public faith 
shall he secured. We cannot conceal our apprehensions 
that the experiment will fail. But let not the Republic 
fail ! The more recent signs are that the spirit which 
caused the war is preparing to fight over politically 
the ground it has lost in battle. This ought not to sur - 
prise us. Let no haste to restore a state, no fear of 
rebel dissatisfaction, lead the Republic to compromise 
its safety or its honor! 

During the progress towards restoration, the nation 
holds the states in military occupation, by powers 
resulting necessarily from successful war. This hold 
upon them is to be continued until this or some other 
experiment does succeed. We need not be precipitate. 
The present authority, although resulting from war, 
may, as we have said, be largely exercised by civil 
methods and civil functionaries, and be accompanied 
with the enjoyment of many civil rights and local 
municipal institutions, executive and judicial. If the 
present experiment fails, we may try the experiment 
of building by the people from the foundation, by 
means of municipal institutions of towns and counties, 
with the aid of education, commerce and immigration, 
a new spirit being infused and the people becoming 
accommodated to their new relations, and so advance 
gradually to complete restoration. 



272 RICHARD HENRY DANA, JR. 

This is but one suggestion. Various methods are 
open to us. Only let it be understood that there is no 
point at which the rebels can defy, 'politically, any more 
than they could in war, the authority of the Republic. 
The end the nation has in view is the same as that for 
which the war was accepted and prosecuted, — the 
restoration of the states to their legitimate relations tvith 
the Republic. The condition of things calls for no limi- 
tations of time or methods. By whatever course of 
reasoning it may be reached, upon whatever doctrine 
of public law it may rest, however long may be the 
interval of waiting, and whatever may be the process 
resorted to, the friends and enemies of the Republic 
should alike understand that it has the powers and 
will use the means to ensure a final restoration of 
the States, with constitutions which are republican, 
and with provisions that shall secure the public safety 
and the public faith. 



XII 
THE PRIZE CAUSES 

[Beginning with the earhest months of the Civil War, the 
United States estabUshed a blockade of the Confederate ports, 
and captured as prizes blockade-runners of neutrals, and also ves- 
sels belonging to citizens residing in the seceding states. 

Early in the war, England and other powers recognized the 
belligerency of both North and South, and it was feared that 
both England and France were on the point of recognizing the 
independence of the Confederate States. In order to prevent the 
latter, and to emphasize our right of denial of secession, both 
President Lincoln and his Secretary of State Mr. Seward had, in 
proclamations and official correspondence, spoken of the whole 
affair as a mere suppression of a local insurrection of citizens, 
and ignored that it was a war. At first, too, there had been much 
opposition in the Northern States to the recognition of belliger- 
ency by England and France, because, in the popular mind, it 
had been somewhat confused with, or at least held as being a 
sort of, recognition of independence. 

By well-known principles of international law, blockade and 
prize could only be resorted to in case of war with an existing 
power, not in a mere suppression of a local insurrection of citizens. 
To keep up the blockade and capture and condemn blockade- 
runners was essential to the suppression of the rebellion. With- 
out these powers, conflict might be indefinitely prolonged, with 
greatly increased chances of success for the Confederacy. 

The owners of the vessels captured as prizes brought suit in 
the Federal Courts, claiming the vessels back on the ground 
that their capture was illegal, contending that there was no war, 
but only a local insurrection. These suits were appealed to the 
United States Supreme Court. Mr. Dana, as United States 



274 RICHARD HENRY DANA, JR. 

District Attorney for the District of Massachusetts, to which 
district some of the prizes were brought, argued these cases for 
the government, both in the lower court and in the Supreme 
Court. 

Here was a dilemma, and how was Mr. Dana to meet it? How 
did he meet it? He reasoned out the philosophy of war and 
showed that war was a process of coercion, and that blockade and 
prize were recognized powers of coercion allowed by the law of 
nations in a war. Having shown this, he emphatically recognized 
that a mere suppression of a local insurrection of citizens was not 
a war in this sense, and that to make it a war, it must be against 
an existing nation; but he went on to prove that, though the na- 
tion against which we were contending must be an existing one, 
or, in legal language, a de facto nation, it was not necessary that 
we should recognize its independence, or that its existence was 
lawful, or, technically speaking, that it was a de jure nation. He 
also turned the recognition of belligerency by foreign nations into 
what it really was, though not generally understood to be, — 
an acquiescence in our rights to these disputed war powers. 

The argument by which Mr. Dana enforced these views is, by 
tradition of the Bench and Bar to this day, one of the greatest 
arguments, none greater, before the Supreme Court of the 
United States. He convinced the entire court. To appreciate the 
task Mr. Dana had before him, the reader should be reminded 
that, out of a court of nine judges, six were democrats, with a 
strong leaning towards the doctrine of state supremacy, and 
three of these were appointed from slave-holding states. The 
opinion of the court not only unanimously sustained Mr. Dana's 
contention of the right of prize, and based the opinion on Mr. 
Dana's argument, but also clearly stated Mr. Dana's points, that 
to make it a war, it was enough that the nation against which we 
were fighting was a de facto one, that it need not be one de jure, 
nor need its independence be recognized. Up to that time, our 
government had been performing the difiicult and somewhat con- 
tradictory task of carrying on a war, when blockade, contraband 
and prize were considered ; but only suppressing a local insurrec- 
tion of citizens, when neutrality or recognition of independence 



THE PRIZE CAUSES 275 

by foreign powers or right of secession was considered. After the 
decision of the Supreme Court in 1863 on the Prize Causes, it was 
no longer necessary to carry on this inconsistent, double-deahng 
poHcy. The decision of the court had done away with any such 
necessity, and had officially committed us to the fact of a war, 
and a great war. 

While Mr. Dana's argument and the decision of the court made 
all this clear, the public was slow to take in the changed point of 
view, and Mr. Dana, in order to clear up the misunderstandings 
that arose, issued a pamphlet, entitled, "Enemy's Territory and 
Alien Enemies: What the Supreme Court decided in the Prize 
Causes." This is published here. There is also the brief, both 
separately printed, and published with extracts from his argu- 
ment with the decision of the court in the second volume of 
Black's United States Supreme Court Reports. ^ To the lay 
reader, I may ex])lain that a brief is rather dull reading. It is 
made up of short, condensed statements of the chief points, fol- 
lowed by citations of authority by name, book and page, in sup- 
port of these points.^ 

But, oh, for the argument! Verily, the lawyer's fame is writ 
in water! Mr. Adams tells in the Life^ the complimentary re- 
marks made by the judges privately, and also publicly stated 
by Judge Greer on reading the opinion, and by members of the 
bar who were present. But the argument, with all its power of 
illustration, force of logic, clear statement, philosophy and elo- 
quence, except as a tradition, has died with the death of those 
who heard it. 

The pamphlet called "Enemy's Territory" touches a special 
branch of the Prize Causes. That branch has nothing to do with 
the capture of blockade-runners. It is related only to the cap- 
ture at sea, wherever found, of vessels belonging to citizens 

^ 2 Black, 635. Mr. Dana's brief and summary of argument, pp. 
650—665. The opinion of the court, pp. 665—682. 

^ For further consideration of the same questions involved, and the 
popular misunderstanding of these Prize Causes, see Note to " Grasp 
of War " speech, supra. 

^ Vol. ii, pp. 266-270. 



276 RICHARD HENRY DANA, JR. 

residing in the "enemy's territory." The prize law allows such 
captures only in case the territory is "enemy's territory." 

Now, when he took the stand that the territory (Richmond, 
in the case of the Amy Warwick) was enemy's, he seemed to be 
admitting that it was territory rightfully belonging to the enemy. 
In the general use of language, that would be the case. To il- 
lustrate, — if, in a suit between myself and B as to the owner- 
ship of a lot in the possession of B, I had in previous conver- 
sation called it "B's lot," that would be admissible evidence 
to show that I had acknowledged that it rightfully belonged 
to B ; but, to apply the analogy to the prize law, in order to get 
the lot back from B by process of court and secure a certain 
writ, I have to show that B is in possession and that I am not 
able to get the lot by peaceable means; and, one step further, 
to make the parallel complete, let us suppose that the process 
by which I, the plaintiff, am to get the lot out of the possession 
of B, the defendant, requires me to call it the "defendant's lot." 
In that case, it would be clear enough from the context that I 
am not admitting that it was B's lot as of right, otherwise 
I would not be taking out the process; but that I admit only 
that it was B's for the time being by forcible possession, which 
possession B is intending to keep as long as he can. 

Just so in the branch of prize law that allows capture of ves- 
sels of citizens in enemy's territory, the process, that is, the 
capture and condemnation, requires the government to show 
that the territory is in complete forcible control of the enemy. 
The phrase in the process is "enemy's territory." That process 
however, in the Civil War, was but a part of the proceedings by 
which the United States sought to get the territory back into its 
possession from out of the possession of those holding it by force. 

There was, no doubt, considerable confusion in the public 
mind, as always arises when common phrases are used in any 
science in a restricted or unusual sense; but in addition to that, 
it must be remembered that there were many persons in the North, 
and still more in European countries, whose sympathies with 
the South induced them to make such use of the decision of the 
Supreme Court as would mislead people into thinking that that 



THE PRIZE CAUSES 277 

decision had acknowledged the independence of the Confeder- 
acy and the right of secession; and this necessitated the publi- 
cation of the pamphlet on this special branch of the prize law.] 

Enemy's Territory and Alien Enemies 
What the Supreme Court decided in the Prize Causes 

Mr. William Beach Lawrence has written a 
letter to a foreign journal ("The Law Magazine," 
London, November, 1863), in which he says of the 
decision of the Supreme Court of the United States, 
in the prize causes last winter, — "What was some- 
what at variance with the views of those who had 
heretofore denied the right of secession, it recognized 
the war as made by the States in their political 
capacities, and, as a corollary therefrom, declared all 
the inhabitants of the seceded States, on account of 
their residence and without regard to their individ- 
ual locality, alien enemies." 

My purpose is to show that this is not a correct 
statement of the decision. It is now reported in 2 
Black's Reports, and it will be found that the Court 
made no such recognition, followed no such corollary, 
announced no such declaration, and arrived at no 
such result. 

This misconception of the decision has not been 
confined to Mr. Lawrence and the advocates of a state 
right of secession. Prominent men, advocating far 
different doctrines, seem to have looked at the de- 
cision in the same light. It has been vouched in to aid 
various theories; but all under the impression that it 
decides that the political relation of the inhabitants 
of the insurgent states to the General Government is 
that of alien enemies, and that the territory covered 



278 RICHARD HENRY DANA, JR. 

by those states is, in law, no more than enemy's ter- 
ritory. It has, therefore, seemed to me not a super- 
fluous task, on an issue so vital and pressing, to en- 
deavor to explain the prize decisions, on that point, 
to persons who may not have studied the principles 
upon which they rest. And I make the attempt with 
the more confidence because, as the opinion of the 
Court supposes in its readers a knowledge of the 
phraseology and principles of the laws of war, an en- 
deavor to give it a popular explanation is not super- 
erogatory. Neither is it unnatural that the general 
reader should be misled by the terms used, and by 
the form of the reasoning, for prize law has its tech- 
nical terms, and the end to which some of the reason- 
ing is addressed is not apparent without a knowledge 
of the whole ground. I do not purpose to go further 
than the Court, and discuss the ultimate question, — 
what is the relation of those states, as bodies politic, 
or of their inhabitants, to the General Government, 
or to offer any opinion of my own in aid of a solution 
of that question. I confine myself to the humbler, 
but I think important task, of offering a popular ex- 
planation of the decision of the Court. 

The Supreme Court decided that the established 
rule of international war respecting "enemy's pro- 
perty" is applicable to such an internal contest as 
that in which we are now engaged. This was the 
extent of the decision on that point: and in this the 
Court was unanimous. 

What is the rule of international war respecting 
"enemy's property"? It is sufficient for the present 
purpose to state it thus: If a person is domiciled in 
enemy's territory, his property, found on the high 
seas, is subject to capture. It is immaterial what 



THE PRIZE CAUSES 279 

may be the civil or political status of that person, as 
regards the government of the capturing power. He 
may be an alien enemy. He may be a neutral — per- 
haps a consul of a neutral power. He may be a loyal 
citizen of the capturing power, with an involuntary 
domicile in the enemy's territory. When the Court 
condemns his property, it is because of the situation 
or predicament of the property, and not because of 
the moral animus or political status of its owner. It 
is called "enemy's property"; but that is a technical 
phrase of prize law. It does not imply anything as to 
the legal, political status of the owner. One of the 
earliest condemnations of "enemy's property" in the 
war of 1812, was of the property of an American citi- 
zen, who happened to be domiciled in Liverpool, for 
commercial purposes, when the war broke out and 
the capture was made. {The Venus, 8 Cranch, 253.) 
A student of international law can easily suppose 
cases where the property even of the President him- 
self, in that war, might have been condemned by us 
as "enemy's property." 

It may be useful, in this connection, to refer to the 
reasons upon which this rule rests, as aiding to a bet- 
ter understanding of the rule itself. The reasons are, 
that property, in certain situations, is so placed that 
the hostile power, whom the war is intended to coerce, 
has an interest in its existence, transit, or arrival, 
and the capturing power a corresponding interest to 
deprive the enemy of that advantage. In this con- 
flict of interests, the consent of nations authorizes 
the strongest to take the property, if it is found at 
sea. One of the facts which puts property in this 
predicament is that the owner of it is himself domi- 
ciled in the enemy's territory, and therefore he and 



280 RICHARD HENRY DANA, JR. 

his property are subject to the unlimited power of 
the enemy, to his taxation, his exactions, his confis- 
cations, forced contributions, and use of all kinds, 
with or without compensation. As the power of the 
enemy over the property of the inhabitants of his 
territory does not depend on their political status, 
and may even be increased by their being hostile to 
him, so neither does the right of the belligerent to 
intercept and take such property depend on those 
considerations. It is at the discretion of political 
power to forego the condemnation, if the owner is 
known to be a loyal subject, having an involuntary 
domicile with the enemy, or to condemn the property 
and remunerate the owner after the war is over, or 
to make no remuneration. As a judicial question, 
the Prize Court can only decide that the property 
is lawful prize. 

The Supreme Court applied this rule to our pre- 
sent war. They held that the property of a person 
domiciled in enemy's territory was subject to cap- 
ture, as a question of law, it being a political question 
whether that right of capture should be enforced. It 
was immaterial, in domestic war as in foreign war, 
whether the owner, so domiciled, be a rebel citizen or 
a loyal citizen, a foreigner aiding the rebellion volun- 
tarily or involuntarily or not aiding it at all, or 
a loyal citizen having an involuntary domicile there. 
The Court decided absolutely nothing as to the legal 
or political status of the owner in relation to our own 
government. To guard against a mistake which 
might arise from the use of the term "enemy's pro- 
perty," the Court expressly says that "enemy's pro- 
perty" is "a technical term peculiar to Prize Courts." 
And again, "Whether property be liable to capture 



THE PRIZE CAUSES 281 

as 'enemy's property,' does not in any manner de- 
pend on the personal allegiance of the owner. It is 
of no consequence whether it belongs to an ally or a 
citizen." (Prize Cases, 2 Black, 674.) As Chief Jus- 
tice Marshall said, it is "a hostile character impressed 
on the property," from its predicament or situation, 
that gives it that name. And as Judge Story said, of 
property of a citizen found engaged in trade with the 
enemy, "it is the illegal trafiic that stamps it as 'en- 
emy's property.'" 

It is further necessary to inquire how the Court 
treated the question of "enemy's territory," resi- 
dence of the owner in which renders the property at 
sea liable to capture. Here, again, the Court simply 
applied to our contest the admitted rule of interna- 
tional law. What is that rule.^^ It is sufficient for the 
present purpose to say that a certain kind and degree 
of possession by the enemy, and the exercise of a 
de facto jurisdiction over a region, render it, for the 
purposes of war and of the prize law, "enemy's ter- 
ritory." Whether a place is, in the meaning of the 
prize law, "enemy's territory," is a question of fact. 
It is not concluded by treaties, statutes, ordinances, or 
any paper-title. War is an appeal to force, and force 
settles the question of enemy's territory for the time. 
In the war of 1812-14, the peninsula of Castine be- 
came enemy's territory, within the meaning of the 
laws of war. If a vessel belonging to a person domi- 
ciled and actually residing there, at that time, had 
been taken by one of our cruisers, bound in to that 
port, our Prize Courts would have condemned it as 
lawful prize, without deciding or inquiring whether 
the owner was a British subject, an American citizen, 
or a neutral. The doctrine of prize of war does not 



282 RICHARD HENRY DANA, JR. 

rest on the basis of a penalty on the owner for his per- 
sonal hostility, actual or implied. It rests on the basis 
of the right of one belligerent power to coerce another 
belligerent poioer by takirig from its control or possibil- 
ity of use, property and materials of certain descriptions 
and found in certain predicaments. Forfeitures and 
Confiscations belong to a distinct branch of law, 
— to the internal, municipal rules of each country, 
to its penal or criminal code. We are treating only 
of the rights and powers of War, to which alone the 
doctrines of Prize belong. When the British withdrew 
their occupation of Castine the owner of this pro- 
perty condemned as "enemy's property," if a citizen 
of the United States, would have resumed all his rights 
and duties as such, and no act of the people of Cas- 
tine, or of the National Government, or of the State 
Government, would be necessary to establish his 
status as a citizen, or the status of Castine as part of 
the State and Nation. 

Now, all that the Supreme Court did in respect 
to the proposition of "enemy's territory," was to 
apply the rules of international war to our contest, 
so far as the law of prize was concerned. The owners 
of the vessels and their cargoes had their domicile 
and actual residence in Richmond, Virginia, and 
Richmond was, at the time of the capture and ad- 
judication, so far in the possession, and under such 
control and de facto jurisdiction of enemies of the 
United States, as to render it, at that time, within 
the meaning of prize law, "enemy's territory." 

That result was not owing to state lines, secession 
ordinances, or any other conventional acts of states 
or people. It was a question of de facto forcible oc- 
cupation. Richmond would have been pronounced 



THE PRIZE CAUSES 283 

*' enemy's territory," and this property condemned 
as "enemy's property," equally as well, if Virginia 
had never passed an ordinance of secession. And 
conversely, if Richmond had been regained into our 
possession, it would not have been decreed "enemy's 
territory," with all its secession ordinance, nor could 
this property have been decreed "enemy's property." 
When a prize court, sitting under the laws of war, 
decides that a certain region is enemy's territory, for 
the purposes of prize law, it does not necessarily 
predicate anything, affirmatively or negatively, as 
to the civil or political relations of that region or of 
its inhabitants with the enemy's government, or with 
its own. 

To guard against a possible mistake arising from 
the use of the phrase "enemy's territory," Judge 
Grier strikingly says, "it has a boundary marked by 
lines of bayonets, and which can be crossed only by 
force. South of this line is enemy's territory, because 
it is claimed and held in possession by an organized, 
hostile and belligerent power." The reason why it is 
enemy's territory for the time being, and for pur- 
poses of prize, is not its ordinances of secession, or 
any legislation, valid or invalid, of the states, or any 
legal effects of rebellion on the region or its inhabit- 
ants, — but ^"because it is claimed and held by an 
organized, hostile, and belligerent poiver." It is im- 
material whether that organized, hostile, belligerent 
power has used the state machinery or not; whether 
it claims to be the several states, or a new body poli- 
tic; whether it is composed solely of citizens, or solely 
of invading aliens, or of both. It is enough that it is 
such an organized force as to raise its acts to the dig- 
nity of war, and that the proper political department 



284 RICHARD HENRY DANA, JR. 

of our government has treated it as war, and applied 
to it the rights and powers of maritime capture. 

The boundary of enemy's territory is, then, a vary- 
ing Hue, depending on de facto condition, and not on 
the enemy's legislation, valid or invalid. What kind 
and degree of possession is necessary to constitute a 
region "enemy's territory," for the purposes of the 
law of prize, the Court did not think necessary to de- 
cide, for the possession the enemy had of Richmond 
was sufficient to satisfy any possible definition. (If 
the reader desires to investigate the question of the 
kind and degree of possession by the enemy which 
will make a region "enemy's territory" for the time 
being, he will find nearly all the law on the subject 
in the case of The Gerasimo, in 11 Moore's Pr. Coun- 
cil Reports.) 

The case which presented the naked question of 
enemy's property was the Amy Warwick. This was 
first adjudicated by Judge Sprague; and in his opin- 
ion, he sets forth the doctrine and its reasons, and 
says that the judgment does not "go beyond the fact 
of permanent residence," and takes pains to pre- 
clude any inference that the decision affects the ex- 
isting or future political relations of the territory or 
its inhabitants with the General Government or the 
State. {The Amy Warwick, 24 Law Reporter, 335, 
494.) 

At the argument of the prize causes on appeal, the 
counsel for the United States adopted a line of argu- 
ment intended to satisfy the Court that such were 
the reasons on which rested the rules of war touching 
enemy's property, that those rules could be appHed 
to an internal war without the necessity of predi- 
cating anything as to the political relations of the 



THE PRIZE CAUSES 285 

owners or of the place of their residence towards the 
General Government. ^ 

It was wittily said, by a distinguished member of 
Congress, that the Supreme Court had decided that 
two of their number were alien enemies. I refer to 
this hon mot as a good illustration of an incorrect 
understanding of the decision. If Mr. Justice Wayne 
had continued to reside in Savannah, and Savannah 
continued to be under the control of the enemy, a 
vessel belonging to Judge Wayne would have been 
good prize, if the Government chose to treat it as such. 
But the fact that his property had been so condemned 
would have no legal effect on his political status under 
our Government, or on the political status of Georgia 
or its inhabitants. 

In closing, I offer the following synopsis of what 
I understand the Court did and did not decide: — 

What the Court did not decide: — 

1. The Court did not decide that the passing of the 
ordinances of secession made the territory of the in- 
surgent states enemy's territory, or its inhabitants 
alien enemies. 

2. The Court did not decide that the passing of 
the secession ordinances terminated, or in any way 
affected, the legal relations of the insurgent states, 
as bodies politic, with the General Government, or 
the political relations of their inhabitants with the 
General Government or with their respective states. 

3. The Court decided absolutely nothing as to 
the effect of the passing of the secession ordinances 

^ I regret not to find among the arguments for the Government in 
these causes, in 2 Black's Reports, the admirable argument of Mr. 
Evarts. His absence from the country on public duty probably pre- 
vented his preparing a synopsis for the reporter. 



286 RICHARD HENRY DANA, JR. 

on the civil or political relations of the inhabitants 
of the insurgent states with the General Government 
or with their respective states, or on the relations of 
the insurgent states, as bodies politic, with the Gen- 
eral Government. 

4. The Court did not decide that the inhabitants 
of the seceding states are alien enemies at all, or that 
the territory of those states is enemy's territory. 

What the Court did decide: — 

1. That in case of domestic war, the Government 
of the United States may, at its option, use the powers 
and rights known to the international laws of war as 
blockade and capture of enemy's property at sea. 

2. That to determine whether property found at 
sea is "enemy's property," within the meaning of the 
law of prize, the same tests may be applied in domes- 
tic as in international wars. 

3. One of those tests is that the owner of the pro- 
perty so found has his domicile and residence in a place 
of which the enemy has a certain kind and degree of 
possession. 

4. Richmond, Virginia, was, at the time of the cap- 
ture and condemnation of those vessels, under such 
possession and control of an organized, hostile, bel- 
ligerent power, as to render it indisputably "enemy's 
territory," within the strictest definitions known to 
the laws of war. 

5. That it was immaterial how that organized power 
came into existence, whether by the use of state ma- 
chinery or otherwise, or what its political claims or 
assumptions are, or whether it is composed of rebel 
citizens, or invading aliens, or both, or whether it 
professes to recognize state lines. It is enough for 
the Court that it is waging war, and so recognized 



THE PRIZE CAUSES 287 

by the political department of the General Govern- 
ment, and has the requisite possession of the region 
in which the owner of the property resides. 

6, That a Court of Prize, in such case, decides in- 
dependently of all questions as to the political rela- 
tions of the owner, or of the place of his domicile, wuth 
the Government of the capturing power. 



XIII 
RUFUS CHOATE 

Remarks at the Meeting of the Suffolk 
Bar in his Honor 

Mr. Chairman, — By your courtesy, and the cour- 
tesy of this bar, which never fails, I occupy an earher 
moment than I should otherwise be entitled to; for 
the reason that in a few hours I shall be called upon 
to take a long leave of the bar and of my home. I 
cannot do that, sir, I cannot do that without rising 
to say one word of what I know and feel upon this 
sad loss. 

The pressure which has been upon me in the last 
few days of my remaining here, has prevented my 
making that kind of preparation which the example 
of him whom we commemorate requires of every man 
about to address a fit audience upon a great subject. 
I can only speak right on what I do feel and know. 

"The wine of life is drawn." The "golden bowl 
is broken." The age of miracles has passed. The 
day of inspiration is over. The Great Conqueror, 
unseen and irresistible, has broken into our temple 
and has carried off the vessels of gold, the vessels 
of silver, the precious stones, the jewels, and the 
ivory; and, like the priests of the Temple of Jerusa- 
lem, after the invasion from Babylon, we must con- 
tent ourselves, as we can, with vessels of wood and 
of stone and of iron. 

With such broken phrases as these, Mr. Chairman, 



RUFUS CHOATE 289 

perhaps not altogether just to the living, we endeavor 
to express the emotions natural to this hour of our 
bereavement. Talent, industry, eloquence, and learn- 
ing there are still, and always will be, at the Bar 
of Boston. But if I say that the age of miracles has 
passed, that the day of inspiration is over, — if I 
cannot realize that in this place where we now are, 
the cloth of gold was spread, and a banquet set fit 
for the gods, — I know, sir, you will excuse it. Any 
one who has lived with him and now survives him, 
will excuse it, — any one who, like the youth in 
Wordsworth's ode, 

"by the vision splendid, 
[s on his way attended, 
\.t length . . . perceives it die away, 
And fade into the hght of common day." 

Sir, I speak for myself, — I have no right to speak 
for others, — but I can truly say, without any ex- 
aggeration, taking for the moment a simile from that 
element which he loved as much as I love it, though 
it rose against his life at last, — that in his presence 
I felt like the master of a small coasting vessel, that 
hugs the shore, that has run up under the lee to speak 
a great homeward-bound Indiaman,i freighted with 
silks and precious stones, spices and costly fabrics, 
with sky-sails and studding-sails spread to the breeze, 
with the nation's flag at her mast-head, navigated 
by the mysterious science of the fixed stars, and 
not unprepared with weapons of defence, her decks 
peopled with men in strange costumes, speaking of 
strange climes and distant lands. 

All loved him, especially the young. He never 

' As Mr. Dana originally gave it, it was "a great Spanish galleon." 



290 RICHARD HENRY DANA, JR. 

asserted himself, or claimed precedence, to the in- 
jury of any man's feelings. Who ever knew him to 
lose temper? Who ever heard from him an unkind 
word? And this is all the more strange from the fact 
of his great sensitiveness of temperament. 

His splendid talents as an orator need no commen- 
dation here. The world knows so much. The world 
knows perfectly well that juries after juries have re- 
turned their verdicts for Mr. Choate's clients, and 
the Court has entered them upon the issues. The 
world knows how he electrified vast audiences in his 
more popular addresses; but, sir, the world has not 
known, though it knows better now than it did, — 
and the testimony of those better competent than 
I am will teach it, — that his power here rested not 
merely nor chiefly upon his eloquence, but rested 
principally upon his philosophic and dialectic power. 
He was the greatest master of logic we had amongst 
us. No man detected a fallacy so quickly, or exposed 
it so felicitously as he, whether in scientific terms to 
the bench, or popularly to the jury; and who could 
play with a fallacy as he could? Ask those venerated 
men who compose our highest tribunal, with whom 
all mere rhetoric is worse than wasted when their 
minds are bent to the single purpose of arriving at 
the true results of their science, — ask them wherein 
lay the greatest power of Rufus Choate, and they 
will tell you it lay in his philosophy, his logic, and 
his learning. 

He was, sir, in two words, a unique creation. He 
was a strange product of New England. Benjamin 
Franklin, John Adams, Samuel Dexter, Daniel Web- 
ster, and Jeremiah Mason seem to be the natural 
products of the soil ; but to me this great man always 



RUFUS CHOATE 291 

seemed as not having an origin here in New England, 
but as if, by the side of our wooden buildings, or by 
the side of our time-enduring granite, there had risen, 
like an exhalation, some Oriental structure, with the 
domes and glittering minarets of the Eastern world. 
Yet, this beautiful fabric, so aerial, was founded upon 
a rock. We know he digged his foundation deep, and 
laid it strong and sure. 

I wished to say a word as to his wit, but time would 
fail me to speak of everything. Yet, without refer- 
ence to that, all I may say would be too incomplete. 
His wit did not raise an uproarious laugh, but created 
an inward and homefelt delight, and took up its abode 
in your memory. The casual word, the unexpected 
answer at the corner of the street, the remark whis- 
pered over the back of his chair while the docket was 
calling, you repeated to the next man you met, and 
he to the next, and in a few days it became the anec- 
dote of the town. When as lawyers we met together, 
in tedious hours, and sought to entertain ourselves, 
we found we did better with anecdotes of Mr. Choate 
than on our own original resources. 

Besides his eloquence, his logical power, and his 
wit, he possessed deep and varied learning. His learn- 
ing was accurate, too. He could put his hand on any 
Massachusetts case as quick as the judge who de- 
cided it. 

But if I were asked to name that which I regard 
as his characteristic, — that in which he differed 
from other learned, logical, and eloquent men of 
great eminence, — I should say it was his aesthetic 
nature. 

Even under the excitement of this moment, I 
should not compare his mind in the point of mere 



292 RICHARD HENRY DANA, JR. 

force of understanding (and, indeed, he would not 
have tolerated such a comparison) with Daniel Web- 
ster; and yet I think we have a right to say that, in 
his aesthetic nature, he possessed something to which 
the minds of Franklin, Adams, Dexter, Mason, and 
Webster were strangers. 

But I ask pardon of the bar. I am not desirous 
of making these comparisons. 

I need not say, sir, that Rufus Choate was a great 
lawyer, a great jurist, and great publicist, but more 
than all that — and I speak of that which I know — 
his nature partook strongly of the poetic element. 
It was not something which he could put on or off, 
but it was born with him — I will not say died with 
him, but is translated with him. 

Shakespeare was his great author. I would have 
defied even the Shakespeare scholar to refer to any 
passage of Shakespeare that Mr. Choate would not 
have recognized instantly. Next to Shakespeare, I 
think I have a right to say he thought that he owed 
more to Wordsworth than to any other poet. He 
studied him before it was the fashion, and before his 
high position had been vindicated. 

Then he was, of course, a great student of Milton, 
and after that, I think that those poets who gained 
the affections of his youth, and wrote when he was 
young, — Byron, Scott, Coleridge, Southey, — had 
his affections chiefly; though, of course, he read and 
valued and studied Spenser and Dryden, and, as a 
satirist and a maker of epigrams, Pope. This love 
of poetry with him was genuine and true. He read 
and studied always, not with a view to make orna- 
ments for his speeches, but because his nature drew 
him to it. We all know he was a fine Greek and Latin 



RUFUS CHOATE 293 

scholar; was accurate; he never made a false quantity. 
Who ever detected him in a misquotation? He once 
told me he never allowed a day to go by that he did 
not write out a translation from some Greek or Latin 
author. This was one of the means by which he gained 
his affluence of language. Of Cicero he was a fre- 
quent student, particularly of his ethical and philo- 
sophical writings. But Greek was his favorite tongue. 

One word more, sir. It is not so generally known, 
I suppose, of Mr. Choate, that, certainly during the 
last ten years of his life, he gave much of his thoughts 
to those noble and elevating problems which relate 
to the nature and destiny of man, to the nature of 
God, to the great hereafter; recognizing, sir, that 
great truth — so beautifully expressed in his favorite 
tongue — in sacred writ. To. fxr) ^Xeiroixeva alcjpta — 
things not seen are eternal. He studied not merely 
psychology; he knew well the great schools of phi- 
losophy; he knew well their characteristics, and read 
their leading men. I suspect he was the first man in 
this community who read Sir William Hamilton, 
and Mansell's work on "The Limits of Religious 
Thought"; and I doubt if the Chairs of Harvard and 
Yale were more familiar with the English and Ger- 
man mind, and their views on these great problems, 
than Mr. Choate. 

He carried his study even into technical theology. 
He knew its genius and spirit better than many di- 
vines. He knew in detail the great dogmas of St. 
Augustine; and he studied and knew John Calvin and 
Luther. He knew the great principles which lie at 
the foundation of Catholic theology and institutions, 
and the theology of the Evangelical school; and he 
knew and studied the rationalistic writings of the 



294 RICHARD HENRY DANA, JR. 

Germans, and was familiar with their theories and 
characteristics. 

With all those persons whom he met and who he 
felt, with reasonable confidence, had sufficient eleva- 
tion to value these subjects, he conversed upon them 
freely. But beyond this — as to his opinions, his re- 
sults — I have no right to speak. I only wished to 
allude to a few of the more prominent of his char- 
acteristics; and it is peculiarly gratifying to remem- 
ber, at this moment, that he had the elevation of 
mind so to lay hold upon the greatest of all subjects. 

I meant to have spoken of his studies of the English 
prose-writers, among whom Bacon and Burke had 
his preference. But he read them all, and loved to 
read them all; from the scholastic stateliness of Mil- 
ton, warring for the right of expressing thoughts for 
all ages, to the simplicity of Cowper's Letters. 

But all this is gone for us ! We are never to see him 
again in the places that knew him. To think that he, 
of all men, who loved his home so, should have died 
among strangers! That he, of all men, should have 
died under a foreign flag ! I can go no further. I can 
only call upon all to bear witness now, and to the 
next generation, that he stood before us an example 
of eminence in science, in erudition, in genius, in 
taste, — in honor, in generosity, in humanity, — in 
every liberal sentiment, and every liberal accomplish- 
ment. 



XIV 
THE MONROE DOCTRINE 

[Mr. Dana's note to Wheaton's "International Law," on the 
Monroe Doctrine, has been repeatedly reprinted in pamphlet 
form and referred to in diplomatic correspondence, and quota- 
tions from it have appeared in the text-books and digests on 
international law in the very latest editions; but the note itself 
in full is out of print. Its historical and international importance 
is great, and the note is, I believe, of lasting value. 

I have added to Mr. Dana's article on the Monroe Doctrine 
a note carrying it up to the present time, including the occupa- 
tion of Mexico by the French during our Civil War, the bound- 
ary dispute between Great Britain and Venezuela, the collection 
of claims against Venezuela, President Roosevelt's attitude in 
connection with foreign claims against San Domingo, and the 
Hague Peace Conference treaties regarding the arbitration of 
the amounts of foreign claims against a delinquent country.] 

Certain declarations in the annual message of 
President Monroe of Dec. 2, 1823, relating to for- 
eign affairs, have become known in history by the 
compendious phrase, the "Monroe Doctrine." They 
have been the subject of a good deal of controversy 
and misunderstanding; and, as they have considerable 
moral influence among American traditions, it is im- 
portant that they should be carefully examined in 
the light of circumstances of the time, and of con- 
temporaneous and subsequent exposition. 

It will be found that the message contains two 
declarations, separated widely in the order of the 



296 RICHARD HENRY DANA, JR. 

message, and not less so in the circumstances out of 
which they arose, the state of things to which they 
were to be applied, and the principles of public law 
upon which they depended. Yet these have often 
been combined, if not confounded, into one doctrine. 
The first declaration related to new acquisition of 
sovereign title by European powers over any portions 
of the American continent, by occupation or colo- 
nization, as of unoccupied country. It was intro- 
duced in connection with the unsettled boundaries 
in the North-west. The second declaration related 
to interposition by European powers in the internal 
affairs of American States, and was introduced in 
connection with the Spanish-American wars of in- 
dependence. These two declarations require a sepa- 
rate treatment. I shall take up first that respecting 
colonization. 

To understand the subject, it is necessary to refer 
to the state of things at the time of the declaration. 
The only European powers on the northern conti- 
nent were Russia and Great Britain; for Spain had, 
by the treaty of 1819, ceded to the United States all 
her territory north of the forty-second parallel, and 
the successful revolution in Mexico had deprived her 
of the rest. The Czar, by a ukase of 4th September, 
1821, had asserted exclusive territorial right, from 
the extreme northern limit of the continent to the 
fifty -first parallel; while, by the treaty of 1818 be- 
tween Great Britain and the United States, these 
two powers had agreed to a joint occupation for ten 
years of all the country that might be claimed by 
either on the north-west coast, westward of the Rocky 
Mountains, without prejudice to the rights or claims 
of either party. At some future time or other, the 



THE MONROE DOCTRINE 297 

boundaries between these powers must be settled; 
and, in a country situated as that was, it was well 
known that the sovereign title to most parts of it 
must depend upon original discovery, exploration, 
and occupation. In such controversies, it is known 
to be a question as obscure as it is important, what 
kind or degree of occupation, and under what cir- 
cumstances made, is necessary to give exclusive sover- 
eign jurisdiction. On the north-west coast, the facts 
of discovery, exploration, and occupation were already 
in dispute, and the meaning of the terms rendered 
more doubtful by the Nootka-Sound Convention, 
of 28th October, 1790, made by Great Britain with 
Spain, to whose rights in that region the United States 
succeeded. While Great Britain and the United States 
had a boundary line to run between themselves, they 
were yet united against the imperial ukase of 1821. 
In this position of things, Mr. J. Q. Adams, then 
Secretary of State, in a letter of July 2, 1823, wrote 
to Mr. Rush, our Minister at London, inclosing copies 
of his instructions to Mr. Middleton, our Minister 
at St. Petersburg, and asking him to confer freely 
with the British Government upon the subject. In 
this letter and instructions, Mr. Adams takes the 
ground that the exclusive rights of Spain to any por- 
tion of the American continent have ceased, by force 
of treaties and of successful revolutions. He refers 
particularly to the burdensome and injurious restric- 
tions and exclusions which have marked the Euro- 
pean colonial systems in America, in respect of com- 
merce, navigation, residence, and the use of rivers 
for passage, trade, and fishing. He contends that 
the entire continent is closed against the establish- 
ment, by any European power, of any such colonial 



298 RICHARD HENRY DANA, JR. 

systems hereafter, in any places not now in their 
actual occupation, because of the sufHcient sover- 
eign title of the powers already established there 
to cover the entire continent. He says: "A necessary 
consequence of this state of things will be, that the 
American continents henceforth will no longer be 
subject to colonization. Occupied by civilized na- 
tions, they will be accessible to Europeans and each 
other on that footing alone; and the Pacific Ocean, 
in every part of it, will remain open to the navigation 
of all nations in like manner with the Atlantic. In- 
cidental to the condition of national independence 
and sovereignty, the rights of interior navigation of 
their rivers will belong to each of the American na- 
tions within its own territories." In this letter is 
the germ of that portion of the Monroe Doctrine re- 
lating to non-colonization. Indeed, its paternity 
belongs to Mr. Adams. It rests on the assertion that 
the continent is ''occupied by civilized nations,'" and 
is "accessible to Europeans and each other on that 
footing alone." 

When Mr. Rush made known Mr. Adams's letter 
to the British Cabinet, he asserts that they totally 
denied the correctness of the position, and that " Great 
Britain considered the whole of the unoccupied parts 
of America as being open to her future settlements 
in like manner as heretofore" ; that is, " by priority 
of discovery and occupation." 

Four months after this letter. President Monroe, 
in his annual message, speaking of the North-western 
Boundary and the proposed arrangements with Great 
Britain and Russia, uses this language: "In the dis- 
cussions to which this interest has given rise, and in 
the arrangements in which they may terminate, the 



THE MONROE DOCTRINE 299 

occasion has been judged proper for asserting, as a 
principle in which the rights and interests of the 
United States are involved, that the American con- 
tinents, by the free and independent condition which 
they have assumed and maintained, are henceforth 
not to be considered as subjects for future coloniza- 
tion by any European power." In taking this posi- 
tion, Mr. Monroe did not intend to establish a new 
system for America, defensive and exclusive against 
European powers, but intended only to apply to the 
state of things in America a recognized principle of 
public law. The only question can be, whether the 
state of things in America did or did not, at that time, 
warrant the application of the principle. In other 
words, w^as any part of the country so unoccupied 
and unappropriated by any civilized power as to be 
open to new acquisition on that ground; or was the 
w^hole continent so occupied and held as, upon prin- 
ciples of public law, to exclude the acquisition of sov- 
ereign title by virtue of subsequent occupation.^ The 
question presented was, in fact, one of political geo- 
graphy. 

It is known that neither Great Britain nor Russia 
assented to the position taken by Mr. Adams, and 
now publicly announced by the President under his 
advice; for those powers had plans of extending their 
colonization and occupation, and contended that 
portions of the country were still open thereto upon 
principles of public law. In 1825-26, Mr. Adams, as 
President, had occasion to explain this declaration 
by reason of the proposal for the Panama Congress; 
and, in the debates upon the Panama mission, the 
subject was fully discussed. The Congress at Panama 
was proposed by the Spanish-American States, whose 



300 RICHARD HENRY DANA, JR. 

independence the United States had acknowledged, 
but who were still nominally at war with Spain. Their 
purpose was to form an alliance among the American 
States for self-defence, for the maintenance of peace 
upon the continent, and to settle some principles of 
public law to govern their relation with each other. 
The United States was invited to take part in the 
Congress; and the proposal was w^ell received by 
President Adams and Mr. Clay, his Secretary of State. 
Among the measures to be adopted by the Congress, 
the following was officially announced by Colombia, 
then the leading Spanish-American power: "To take 
into consideration the means of making effectual the 
declaration of the President of the United States re- 
specting any ulterior design of a foreign power to 
colonize any portion of this continent, and also the 
means of resisting all interference from abroad with 
the domestic concerns of the American governments." 
A strong opposition arose in Congress to the Panama 
mission, and Mr. Adams offered an explanation of its 
probable results. In his special message to the Senate 
of Dec. 26, 1825, he says: "An agreement between 
all the parties represented at the meeting, that each 
will guard by its own means against the establishment 
of any future European colony within its borders, 
may be found advisable. This was more than two 
years since announced by my predecessor, as a prin- 
ciple resulting from the emancipation of both the 
American continents." Again, in his message to the 
House of Representatives, of March 26, 1826, refer- 
ring to this doctrine of non-colonization in Mr. Mon- 
roe's message of 1823, he says: "The principle had 
first been assumed in the negotiation with Russia. It 
rested upon a course of reasoning equally simple and 



THE MONROE DOCTRINE 301 

conclusive. With the exception of the existing Euro- 
pean colonies, which it was in nowise intended to 
disturb, the two continents consisted of several 
sovereign and independent nations, whose territories 
covered their ivhole surface. By this their independent 
condition, the United States enjoyed the right of 
commercial intercourse with every part of their pos- 
sessions. To attempt the establishment of a colony 
in those possessions would be to usurp, to the exclu- 
sion of others, a commercial intercourse which was 
the common possession of all." 

The Spanish-American States had appeared to 
understand Mr. Monroe's message as "a pledge," 
by the United States, to the other American States, 
of mutual support in maintaining this doctrine; and 
to consider the United States bound to join with them 
in some alliance, offensive and defensive, for that 
purpose. Congress was unwilling to adopt the policy 
of entangling alliances. A resolution of the House 
of Representatives declared that the United States 
"ought not to become parties with the Spanish- 
American republics, or either of them, to any joint 
declaration for the purpose of preventing the inter- 
ference of any of the European powers with their 
independence or form of government, or to any com- 
pact for the purpose of preventing colonization upon 
the continents of America; but that the people of the 
United States should be left free to act, in any crisis, 
in such a manner as their feelings of friendship to- 
wards these republics, and as their own honor and 
policy may at the time dictate." 

The Senate confirmed the appointment of two 
commissioners for the Panama Congress, and the 
House of Representatives voted the appropriations; 



802 RICHARD HENRY DANA, JR. 

but, owing to the death of one commissioner and 
the delay of the other, the United States was not 
represented at the first session of the Congress, and 
a second session was never held. This was owing in 
part to the disturbed condition of the Spanish-Ameri- 
can States, but more to their disappointment at the 
attitude of the United States. Whatever view the ad- 
ministration of Mr. Adams may first have taken, and 
however popular the proposal of the mission may 
have been at first, it is certain that the administration 
at last came to a narrow limitation of the project; 
and the public judgment soon settled upon an oppo- 
sition to the entire scheme. The opposition in Con- 
gress successfully contended, that, if the Panama 
meeting amounted to anything, it would tend to es- 
tablish on this continent, in the interests of republi- 
canism, the same kind of system which had been 
established in Europe in the interests of despotism, 
and that the United States would necessarily be its 
protector, and the party responsible to the world; 
while the Spanish-American States would get the bene- 
fits of a system of mutual protection which the United 
States did not need. 

In criticising Mr. Adams's language in his message 
of December 26, — "Each shall guard, hy its own means, 
against the establishment of any future European 
colony within its borders,'' which, he says, was the 
principle announced by his predecessor, — it is often 
said that he reduced this branch of the Monroe Doc- 
trine to insignificance, as this is no more than States 
will naturally and necessarily do, without compact. 
But this is not a correct or sufficient view of the sub- 
ject. Mr. Monroe had equally assumed, in 1823, 
that a sovereign State would not permit other sov- 



THE MONROE DOCTRINE 303 

ereign States to appropriate its territory by coloniza- 
tion. On that assumption, he declared simply the 
fact, that the whole continent was within the territory 
of some responsible State, and not feroB naturw, and 
so open to appropriation. It was this fact that was, 
at the time, disputed by European powers. Mr. Mon- 
roe did not declare or intimate, directly or indirectly, 
a policy — what the United States would do if a Eu- 
ropean power should attempt colonization within 
what he claimed to be our territory; still less, what 
we would do if a European power should attempt it 
in what we held to be the territory of some other 
American sovereign State. Our action, in either event, 
was left to be determined upon when the case should 
arise. When, therefore, the administration and Con- 
gress refused to make any compact, or commit the 
government in advance by pledge or understanding, 
to any system of cooperation in a future contingency, 
they did not abandon or qualify Mr. Monroe's posi- 
tion. The proper view, therefore, of Mr. Adams's 
proposal is, that each State represented at the Con- 
gress should make, for itself, the declaration which 
Mr. Monroe made for the United States in 1823, — 
that is, that its territories were not open to appropria- 
tion by colonization, — and pledge itself to resist any 
attempts in that direction. Even this proposal, simple 
and inefficient as it seemed, was objected to, as liable 
to be construed into an implied pledge of assistance 
to any State that should be driven to war to main- 
tain it. 

Mr. Everett, in his speech, said: "On one of these 
points, — the resistance to colonization, — when the 
southern republics shall become fully informed of 
the position of the United States in reference to that 



304 RICHARD HENRY DANA, JR. 

question, most assuredly they will withdraw the wish, 
if they now entertain it, to enter into an alliance with 
us." Mr. Webster said: "We have a general interest, 
that, through all the vast territories rescued from 
the dominion of Spain, our commerce may find its 
way, protected by treaties with governments existing 
on the spot. These views, and others of a similar char- 
acter, render it highly desirable to us that these new 
States should settle it, as a part of their policy, not 
to allow colonization within their respective territo- 
ries. True indeed, we do not need their aid to assist 
us in maintaining such a course for ourselves ; but we 
have an interest in their assertion and their support 
of the principle as applicable to their own territories." 
Mr. Clay, then Secretary of State, in his despatch 
of March 25, 1825, to Mr. Poinsett, our Minister to 
Mexico, referring to Mr. Monroe's declaration re- 
specting colonization, says: "Whatever foundation 
may have existed three centuries ago, or even at a 
later period, when all this continent was under Eu- 
ropean subjection, for the establishment of a rule, 
founded on priority of discovery and occupation, 
for apportioning among the powers of Europe parts 
of this continent, none can now be admitted as ap- 
plicable to its present condition. There is no dispo- 
sition to disturb the colonial possessions, as they now 
exist, of any of the European powers; but it is against 
the establishment of new European colonies upon 
this continent, that this principle is directed. The 
countries in which any such new establishments 
might be attempted, are now open to the enterprise 
and commerce of all Americans; and the justice or 
propriety cannot be recognized of arbitrarily limiting 
and circumscribing that enterprise and commerce 



THE MONROE DOCTRINE 305 

by the act of voluntarily planting a new colony, with- 
out the consent of America, under the auspices of 
foreign powers belonging to another and a distant 
continent. Europe would be indignant at an attempt 
to plant a colony on any part of her shores ; and her 
justice must perceive, in the rule contended for, only 
perfect reciprocity." 

President Polk, in his annual message to Congress, 
of Dec. 2, 1845, after dealing with the Oregon bound- 
ary question, and defending the annexation of Texas, 
and protesting against any possible interposition 
of European powers to prevent it, seeks to bring into 
service this portion of the Monroe Doctrine. Quoting 
the passage respecting colonization, he says: "In 
the existing circumstances of the world, the present 
is deemed a proper occasion to reiterate and re-affirm 
the principle avowed by Mr. Monroe, and to state 
my cordial concurrence in its wisdom and sound 
policy. Existing rights of every European nation 
should be respected: but it is due alike to our safety 
and our interests that the efficient protection of our 
laws should be extended over our whole territorial 
limits; and that it should be distinctly announced to 
the world as our settled policy, that no future Euro- 
pean colony or dominion shall, with our consent, be 
planted or established on any part of the North- 
American continent." It will be seen that Mr. Polk 
quotes no part of Mr. Monroe's message except the 
single paragraph relating to colonization. Professedly 
re-affirming that, he states a broader and very dif- 
ferent doctrine; namely, not only that the continent 
is not open to colonization, but that no European 
"dominion" shall be "established" with our consent 
on any part of the North-American continent. This 



306 RICHARD HENRY DANA, JR. 

doctrine of Mr. Polk would require our consent to 
any acquisition of dominion by a European power, 
whether by voluntary cession or transfer, or by con- 
quest. 

Toward the close of the Mexican war, on the 29th 
April, 1848, Mr. Polk sent a special message to Con- 
gress on the subject of Yucatan. He represented that 
country as suffering severely from an insurrection 
of the native Indians, and as having offered to trans- 
fer to the United States "the dominion and sover- 
eignty of the peninsula," if we would give them ma- 
terial aid in suppressing the insurrection. He added 
that they had applied also to Great Britain and Spain ; 
and expressed the opinion, that, if we did not accept 
the offer, Yucatan might pass under the control of 
one of those powers. He then refers to the Monroe 
Doctrine as opposed to the transfer of American 
territory to any European power, and to the exten- 
sion of their system to this hemisphere; quotes his 
own message of Dec. 2, 1845 (cited above); and 
recommends Congress to take measures to prevent 
Yucatan becoming a European colony, which, he 
says, "in no event could be permitted by the United 
States." A bill was immediately introduced into the 
Senate, authorizing the raising of an additional mil- 
itary force to enable the President to "take tempo- 
rary military possession" of Yucatan, and to aid its 
people against the Indians. A motion was made to 
amend the bill so as to change entirely the charac- 
ter of the proposed step. The amendment was upon 
the theory that Yucatan might be treated by us as 
a part of the republic of Mexico, and occupied by 
us as part of our war against that power. This was 
supported by Mr. Jefferson Davis ; but the adminis- 



THE MONROE DOCTRINE 307 

tration party generally, led by Mr. Cass and Mr. 
Hannegan, favored the original bill, and supported 
it on the ground of preventing by anticipation a new 
European dependency. The opposition resisted both 
schemes throughout. While the discussion was going 
on, news arrived of a treaty between the Indians and 
whites in Yucatan; and the project of taking posses- 
sion was abandoned. During this debate, Mr. Cal- 
houn made a speech upon the Monroe Doctrine, sig- 
nificant from the fact that he was a leading member 
of Mr. Monroe's Cabinet at the time of the mes- 
sage, and at this time the only survivor. He gave the 
history of the declaration respecting foreign inter- 
position in American affairs, now well known, and 
referred to hereafter; its origin in the attempt to ex- 
tend the arm of the Holy Alliance over Spanish Amer- 
ica; and states that the subject was gravely consid- 
ered by the Cabinet, on receiving from Mr. Rush Mr. 
Canning's proposal, and that the language in which 
the declaration was couched was carefully weighed 
and agreed upon by the entire Cabinet. These are 
the passages at the close of the message, in connec- 
tion with the affairs of Spanish America, relating 
to attempts of the European powers to extend their 
system over this hemisphere, and interpositions to 
oppress or control the destiny of any American State. 
As to the paragraph relating to colonization, intro- 
duced into the early part of the message, in connec- 
tion with the British and Russian boundaries, Mr. 
Calhoun says that was not submitted to the Cabinet, 
and formed no part of the principle they intended 
to announce; but was a disconnected position taken 
by Mr. Adams, in the negotiations under his sole 
charge with Russia and England, which the President 



308 RICHARD HENRY DANA, JR. 

introduced into his message, by Mr. Adams's advice, 
in that connection. Mr. Calhoun treated it as Hmited 
to acquisitions of sovereignty over unoccupied re- 
gions of country by virtue of prior colonization, and 
as having no relation to such transfers of acknow- 
ledged sovereign territory as may be made by co- 
ercion or voluntary agreement between civilized 
nations. He says: "The word 'colonization' has a 
specific meaning. It means the establishment of a 
settlement, by emigrants from the parent country, 
in a territory either uninhabited, or from which the 
inhabitants have been partially or wholly expelled." 
No doubt, the same objections existed against new 
foreign dominions, however they might be derived; 
but the paragraph only declared against deriving 
dominion from colonization, as not admissible in the 
condition which the continent had reached. As to 
the other and more general doctrine of opposition to 
European intervention, Mr. Calhoun took the ground 
which had been taken in the Panama discussion, and 
which the opposition was then holding in the case 
before the Senate, — that the United States was 
under no pledge to intervene against intervention, 
but was to act in each case as policy and justice re- 
quired; and that, in this case, there was no proof of 
a danger of actual transfer to a European power, or 
if there were, that the object was important enough 
to us to warrant our intervention. 

At the time Mr. Calhoun made this speech, as has 
been said, neither Mr. Adams nor Mr. Monroe was 
living; but Mr. Calhoun referred back to his speech 
on the Oregon question, where he says he made the 
statement that the clause respecting colonization was 
not submitted to the Cabinet. "I stated it in order 



THE MONROE DOCTRINE 309 

that Mr. Adams might have an opportunity of deny- 
ing it, or asserting the real state of the facts. He 
remained silent; and I presume that my statement is 
correct." (Calhoun's Works, iv, 454.) Mr. Calhoun's 
statement derives confirmation also from the fact 
that this subject of colonization is not noticed in the 
correspondence, hereafter cited, between Mr. Monroe 
and Mr. Jefferson, to whom the subject of a declara- 
tion had been referred by Mr. Monroe. 

In explanation of this movement respecting Yuca- 
tan, and the attempt to invoke, in its aid, the 
popularity of the Monroe Doctrine, it should be re- 
membered that the slave-power had obtained an 
ascendency in the counsels of the nation; that Mr. 
Polk's administration was devoted to its interests; 
and that its purpose was to add slave States to the 
Union by extending our territory southward, and, 
eventually, by the acquisition of Cuba. It was not 
politic, with reference to its Northern adherents, to 
avow the motive; and its movements were made 
under the color of preventing foreign intervention or 
the acquisition of foreign dominion, and under the 
sanction of a popular tradition. Mr. Calhoun not 
only saw that the Monroe Doctrine was perverted, 
but believed that the cause of slavery extension 
would be perilled by involving the country in foreign 
complications in its behalf, on novel and doubtful 
principles. 

A careful examination of this history, from the first 
letters of Mr. Adams to Mr. Rush and Mr. Middle- 
ton, in 1823, to the close of the Yucatan debate, will 
show that the general object of Mr. Adams was to 
prevent the establishment on this continent of new 
colonial dependencies of European powers. These 



310 RICHARD HENRY DANA, JR. 

were objectionable by reason of the restrictions and 
exclusions on commerce and navigation which, to 
that time, formed part of the European colonial sys- 
tems, especially when such colonies lay at the mouth 
of a river occupied above by American colonies, or 
the converse; and by reason of the totally different 
political systems of which they would become a part, 
as distant from our own in principle as in geographic 
space. It was not necessary to declare that one State 
shall not appropriate by colonization part of the re- 
cognized territory of another State. That would be 
an act of war, the world over. It was not necessary 
to take the new and peculiar position, that, if any 
parts of this continent were lying ferce naturce and 
beyond the recognized limits of a civilized State, they 
still should be closed to the colonization of any but 
the independent States of this continent: excluding 
not only European States unconnected with the con- 
tinent, but those that now had possessions here. Mr. 
Adams thought the end could be attained by declar- 
ing that no part of the continent was in that condi- 
tion; that it was all, in his own words, "occupied by 
civilized nations," and "accessible to Europeans and 
each other on that footing alone." It will be seen that 
this declaration has ceased to be of much consequence, 
as no doubt can now be made that such is the present 
condition of the continent. By treaties and long pos- 
session, the boundaries of the continent have been 
adjusted, among the American States and the pre- 
viously existing foreign colonies, upon the theory of 
including all parts of the continent within the do- 
main of a recognized State, from the Polar Seas to 
the Straits of Magellan. If any portion of an Ameri- 
can State should hereafter become a foreign depend- 



THE MONROE DOCTRINE 311 

ency, it must be as a result of coercion or of volun- 
tary compact, and not by virtue of title founded on 
appropriation by recent primary occupation. 

In the debates in the Senate of the United States 
in 1855-56, on the construction to be given to the 
Clayton-Bulwer treaty of 1850, there was some dis- 
cussion as to the effect of the phrase "occupy and 
colonize." That treaty, which was intended to se- 
cure an inter-oceanic transit across the Isthmus, and, 
for that purpose, to maintain the neutrality of the 
region in use, contained this clause: "The govern- 
ments of the United States and Great Britain hereby 
declare, that neither one nor the other will ever oc- 
cupy or fortify or colonize, or assume or exercise any 
dominion over, Nicaragua, Costa Rica, the Mosquito 
coast, or any part of Central America; nor will either 
make use of any protection which either affords or 
may afford, or any alliance which either has or may 
have to or with any State or people, for the purpose 
of erecting or maintaining any such fortifications, or 
of occupying, fortifying, or colonizing Nicaragua, 
Costa Rica, the Mosquito coast, or any part of Cen- 
tral America, or of assuming or exercising dominion 
over the same." The British Government took the 
position that this clause related only to future acts, 
and did not embrace places in their possession at the 
time the treaty was made. This construction was 
rejected by the United States. The words "fortify 
or colonize, or assume . . . dominion over," doubt- 
less look solely to the future. The word "occupy" 
may be ambiguous. It has, in the Law of Nations, a 
technical sense, derived from the Roman law, signi- 
fying the taking original possession of anything not 
at the time in possession, and therefore open to ap- 



312 RICHARD HENRY DANA, JR. 

proprlation, — as of animals jer(B naturce, or of things 
derelict, &c.; and, when applied to territory, signify- 
ing the acquisition of sovereign title by original occu- 
pation of a place not at the time within the occupa- 
tion and jurisdiction of a recognized sovereignty. 
But, in its general and popular sense, it signifies merely 
the act or condition of possessing: as successive ten- 
ants are said to occupy a house, or a military force a 
town. In the former sense, the word would be limited 
to future acts; while, in the latter sense, it would 
not. But the American argument did not rest on the 
character of one word, but on the sense of the entire 
clause, especially as colored by the words "exercise 
dominion." 

We now proceed to examine that distinct branch 
of the Monroe Doctrine which relates to European 
intervention in American affairs. 

The result of the congresses at Laybach and Verona 
was an alliance of Russia, Prussia, Austria, and France ; 
the ostensible object of which was to preserve the 
peace of Europe, and to put down conspiracies against 
established power, consecrated rights, and social 
order: but, as the allies acknowledged no legitimate 
basis of right and order except the existing heredi- 
tary sovereign houses of Europe, the practical result 
was a combination of forces against all changes in 
the direction of liberal institutions not voluntarily 
made by the sovereigns. In accordance with the 
spirit of this alliance, the movements for free con- 
stitutions in 1821 in Spain, Naples, and Piedmont 
were put down by armed intervention, and absolutism 
re-instated. At this time, the Spanish colonies in 
America, after years of warfare, had substantially 
secured their independence, which had been recog- 



THE MONROE DOCTRINE 313 

nized by the United States; but Spain still asserted 
her claim ; and the independence of the provinces had 
not been acknowledged by Great Britain diplomat- 
ically, though she had sent consuls to their principal 
ports. In 1823, to carry out the purposes of the Holy 
Alliance, France invaded Spain, to suppress the con- 
stitutional government of the Cortes established 
there, and restore absolutism in the person of Ferdi- 
nand VIL As the success of the French invasion 
became certain, there were signs that the parties to 
the Holy Alliance intended to go further, and lend 
their aid to Ferdinand VII to restore his dominion 
over the Spanish-American provinces. The fears of 
this course were justified by the previous language 
of the Holy Alliance. In the Laybach circular of 
May 12, 1821, they distinctly declared that they 
regarded "as equally null, and disallowed by the 
public law of Europe, any pretended reform effected 
by revolt and open force"; and in their circular of 
Dec. 5, 1822, respecting the constitutional govern- 
ment in Spain, they declared their resolution "to 
repel the maxim of rebellion, in whatever place or 
under whatever form it might show itself"; thus 
repeating their claim made at Troppau, "that the 
European powers have an undoubted right to take 
a hostile attitude in regard to those States in which 
the overthrow of the government might operate as 
an example." England professed, also, to see indica- 
tions that France intended to be compensated for 
her effective intervention, by a cession of some Amer- 
ican province, and Cuba was the suspected reward. 
Great Britain, who had never been party to this 
alliance, and protested against the intervention of 
1821, took special umbrage at the French invasion 



314 RICHARD HENRY DANA, JR. 

of Spain, her late ally, from whose borders she had, 
only ten years before, expelled the French armies. 
There was a strong popular inclination in England 
to make this invasion a cause of war; but this was 
not seconded by the ministry, who betook themselves 
to diplomatic efforts to defeat the schemes of the 
continental powers. The French Government, on its 
part, had its suggestion that the British Cabinet was 
determined to send a squadron, and take possession 
of Cuba. The people of Cuba, already divided be- 
tween the parties of the king and the Cortes, and 
terrified by symptoms of slave insurrections, had 
among them large numbers who, dissatisfied with 
Spanish rule, looked to other powers for protection, 
— some to Great Britain, but far the larger part to 
the United States. About September, 1822, the lat- 
ter party sent a secret agent to confer with President 
Monroe. They declared, that, if the United States 
Government would promise them protection, and ul- 
timate admission into the Union, a revolution would 
be made to throw off the Spanish authority, of the 
success of which they had no doubt. While this pro- 
position was before Mr. Monroe's Cabinet, he re- 
ceived an unofficial and circuitous communication 
from the French Minister, asserting that his govern- 
ment had positive information of the design of Great 
Britain to take possession of Cuba. The American 
Government replied to the Cuban deputation, that 
the friendly relations of the United States with Spain 
did not permit us to promise countenance or protec- 
tion to insurrectional movements, and advised the 
people of Cuba to adhere to their Spanish allegiance; 
at the same time informing them that an attempt 
upon Cuba, by either Great Britain or France, would 



THE MONROE DOCTRINE 315 

place the relations of Cuba with the United States 
in a very different position. Mr. Rush was instructed 
to inform Mr. Canning that the United States could 
not see with indifference the possession of Cuba by 
any European power other than Spain, and to inform 
him of the rumors that had reached the Cabinet. Mr. 
Canning disavowed emphatically all intention on the 
part of Great Britain to take possession of Cuba, but 
avowed her determination not to see with indiffer- 
ence its occupation by either France or the United 
States; and proposed an understanding between the 
British, French, and American governments, without 
any formal convention, that Cuba should be left in 
the quiet possession of Spain. This was assented to 
by Mr. Monroe; but he had no communication with 
France on the subject, leaving that to the manage- 
ment of Great Britain. 

As respects the Spanish colonies which had been 
at war with Spain for their independence, the United 
States were naturally anxious about the movements 
of the allies; and Mr. Adams had communicated to 
Mr. Rush at London, in general terms, the strong 
feeling of the government, and the earnest popular 
opinion on that subject. The British Government 
was also very solicitous to prevent all intervention 
against those provinces by the continental powers, 
and to leave them free to complete their independ- 
ence. This would not only, with the arrangement 
respecting Cuba, defeat the Transatlantic schemes 
of France, if she had any, and, in the famous words 
of Mr. Canning, "call the new world into existence 
to redress the balance of the old," but would repress 
generally the absolutist powers on the continent, 
avenge the affront to Great Britain by the invasion 



316 RICHARD HENRY DANA, JR. 

of Spain, and procure for England the benefit of an 
unrestricted commerce with Spanish America. Mr. 
Canning feared that a formal recognition of the in- 
dependence of those colonies might involve England 
in a war with the continental powers ; but was confi- 
dent that their independence would be secured if all 
intervention or hope of intervention in aid of Spain 
could be effectually precluded. With this view, Mr. 
Canning, in August and September, 1823, urged upon 
Mr. Rush a combined declaration by Great Britain 
and the United States to the effect, that, while they 
aimed at the possession of no portion of the Spanish 
colonies for themselves, and would not obstruct any 
amicable negotiations between the colonies and the 
mother country, they could not see with indifference 
the intervention of any foreign power, or the transfer 
to such power of any of the colonies. In support of 
his request, Mr. Canning stated that a proposal 
would be made for a European Congress, to settle 
the affairs of Spanish America; and said that Great 
Britain would take no part in it, except upon the 
terms that the United States should be represented. 
Mr. Rush replied, as to the Congress, that it was the 
traditional policy of the United States to take no 
part in European politics; and, having no instructions 
from his government, said he would still take the 
responsibility of joining in the declaration, if Great 
Britain would first acknowledge the independence of 
the colonies. Mr. Canning not being ready to take 
this decisive step, the proposed joint declaration was 
never made; but Mr. Rush communicated the pro- 
posal to his government; the result of which was the 
celebrated declaration against European intervention 
in Mr. Monroe's annual message of Dec. 2, 1823. 



THE MONROE DOCTRINE 317 

In Mr. Monroe's Cabinet at that time, John Quincy 
Adams was Secretary of State, and Mr. Calhoun Sec- 
retary of War; and, beside the advice derived from 
them, Mr. Monroe laid the subject of Mr. Canning's 
proposal before Mr. Jefferson, — then in retirement, 
— and asked his opinion. Mr. Jefferson replied by 
an elaborate letter, of 24 October, 1823. (Jefferson's 
Life, iii, 491.) He says: "Our first maxim should be, 
never to entangle ourselves in the broils of Europe; 
our second, never to suffer Europe to intermeddle 
with Cisatlantic affairs." Referring to the great 
power Great Britain could wield for good or evil in 
these controversies, and expressing his gratification 
at the stand she was then taking, and recognizing 
the fact that we could not join in the declaration if 
we had any designs upon Cuba or any American 
State ourselves, he advised Mr. Monroe to join in 
the declaration, which Mr. Jefferson worded thus: 
"That we aim not at the acquisition of any of those 
possessions; that we will not stand in the way of any 
amicable arrangement between the colonies and their 
mother country; that we will oppose with all our 
means the forcible interposition of any other power 
as auxiliary, stipendiary, or under any other form or 
pretext, and most especially their transfer to any 
power by conquest, cession, or acquisition in any other 
way." 

It will be seen that the administration did not ac- 
cept Mr. Canning's proposal for a joint declaration, 
but spoke for the United States alone; and, in doing 
so, did not adopt the declaration proposed by Mr. 
Canning and recommended by Mr. Jefferson, but 
a very different one. After treating of various other 
matters foreign and domestic, as usual in the annual 



318 RICHARD HENRY DANA, JR. 

message, Mr. Monroe passes, towards its close, to 
speak of the efforts in Spain and Portugal to improve 
the condition of the people, and of the general disap- 
pointment of the expectations of the American people 
in favor of the liberty and happiness of their fellow- 
men on that side of the Atlantic and says: "In the 
wars of the European powers, in matters relating to 
themselves, we have never taken any part, nor does 
it comport with our policy so to do. It is only when 
our rights are invaded or seriously menaced that we 
resent injuries, or make preparation for our defence. 
With the movements in this hemisphere we are, of 
necessity, more immediately connected, and by causes 
which must be obvious to all enlightened and im- 
partial observers. The political system of the allied 
powers is essentially different in this respect from 
that of America. This difference proceeds from that 
which exists in their respective governments. And 
to the defence of our own, which has been achieved 
by the loss of so much blood and treasure, and ma- 
tured by the wisdom of our most enlightened citizens, 
and under which we have enjoyed an unexampled 
felicity, this whole nation is devoted. We owe it, 
therefore, to candor and to the amicable relations 
existing between the United States and those powers 
to declare, that we should consider any attempt on 
their part to extend their system to any portion of 
this hemisphere as dangerous to our peace and safety. 
With the existing colonies or dependencies of any 
European power, we have not interfered, and shall 
not interfere. But with the governments who have 
declared their independence and maintained it, and 
whose independence we have, on great consideration 
and on just principles, acknowledged, we could not 



THE MONROE DOCTRINE 319 

view any interposition for the purpose of oppressing 
them, or controlling in any other manner their des- 
tiny, by any European power, in any other light than 
as the manifestation of an unfriendly disposition 
toward the United States. In the war between those 
new governments and Spain, we declared our neu- 
trality at the time of their recognition; and to this 
we have adhered, and shall continue to adhere, pro- 
vided no change shall occur which, in the judgment 
of the competent authorities of this government, shall 
make a corresponding change on the part of the 
United States indispensable to their security." Then, 
speaking of the recent forcible interposition by the 
allies in the internal concerns of Spain, he says: "To 
what extent such interposition may be carried, on 
the same principle, is a question in which all inde- 
pendent powers whose governments differ from theirs 
are interested, and even those most remote, and 
surely none more so than the United States. Our 
policy in regard to Europe, which was adopted at an 
early stage of the wars which have so long agitated 
that quarter of the globe, nevertheless remains the 
same; which is, not to interfere in the internal con- 
cerns of any of its powers ; to consider the government 
de facto as the legitimate government for us ; to cul- 
tivate friendly relations with it ; and to preserve those 
relations by a frank, firm, and manly policy, meeting 
in all instances the just claims of every power, sub- 
mitting to injuries from none. But, in regard to these 
continents, circumstances are eminently and con- 
spicuously different. It is impossible that the allied 
powers should extend their political system to any 
portion of either continent without endangering our 
peace and happiness; nor can any one believe that 



320 RICHARD HENRY DANA, JR. 

our Southern brethren, if left to themselves, would 
adopt it of their own accord. It is equally impossible, 
therefore, that we should behold such interposition 
in any form with indifference. If we look to the com- 
parative strength and resources of Spain and those 
new governments, and their distance from each other, 
it must be obvious that she can never subdue them. 
It is still the true policy of the United States to leave 
the parties to themselves, in the hope that the other 
powers will pursue the same course." 

This message of President Monroe reached England 
while the correspondence between Mr. Canning and 
the Prince Polignac was in progress; and it was re- 
ceived not only with satisfaction, but with enthusiasm. 
Mr. Brougham said: "The question with regard to 
Spanish America is now, I believe, disposed of, or 
nearly so; for an event has recently happened than 
which none has ever dispersed greater joy, exultation, 
and gratitude over all the free men of Europe: that 
event, which is decisive on the subject, is the language 
held with respect to Spanish America in the message 
of the President of the United States." Sir James 
Mackintosh said: "This coincidence of the two great 
English commonwealths (for so I delight to call them ; 
and I heartily pray that they may be for ever united 
in the cause of justice and liberty) cannot be con- 
templated without the utmost pleasure by every en- 
lightened citizen of the earth." This attitude of the 
American Government gave a decisive support to that 
of Great Britain, and effectually put an end to the 
designs of the absolutist powers of the continent to 
interfere with the affairs of Spanish America. Those 
dynasties had no disposition to hazard a war with 
such a power, moral and material, as Great Britain 



THE MONROE DOCTRINE 321 

and the United States would have presented, when 
united in the defence of independent constitutional 
governments. 

It is to be borne in mind that the declarations 
known as the Monroe Doctrine have never received 
the sanction of an act or resolution of Congress; nor 
have they any of that authority which European gov- 
ernments attach to a royal ordinance. They are, in 
fact, only the declarations of an existing administra- 
tion of what its own policy would be, and what it 
thinks should ever be the policy of the country, on a 
subject of paramount and permanent interest. Thus, 
at the same session in which the message was delivered, 
Mr. Clay introduced the following resolution: "That 
the people of these States would not see, without 
serious inquietude, any forcible interposition by the 
allied powers of Europe, in behalf of Spain, to reduce 
to their former subjection those parts of the con- 
tinent of x^merica which have proclaimed and estab- 
lished for themselves, respectively, independent gov- 
ernments, and which have been solemnly recognized 
by the United States." But this resolution was never 
brought up for action or discussion. It is seen also, by 
the debates on the Panama mission and the Yucatan 
intervention, that Congress has never been willing to 
commit the nation to any compact or pledge on this 
subject, or to any specific declaration of purpose or 
methods, beyond the general language of the message. 

In the debates on the Clayton-Bulwer treaty, in 
1855-56, above referred to, all the speakers seemed to 
agree to this position of the subject. Mr. Clayton 
said : " In reference to this particular territory, I would 
not hesitate at all, as one Senator, to assert the Mon- 
roe Doctrine and maintain it by my vote; but I do not 



322 RICHARD HENRY DANA, JR. 

expect to be sustained in such a vote by both branches 
of Congress. Whenever the attempt has been made 
to assert the Monroe Doctrine in either branch of 
Congress, it has failed. The present Democratic party 
came into power, after the debate on the Panama 
mission, on the utter abnegation of the whole doctrine, 
and stood upon Washington's doctrine of non-inter- 
vention. You cannot prevail on a majority, and I will 
venture to say that you cannot prevail on one-third, 
of either house of Congress to sustain it." Mr. Cass 
said : "Whenever the Monroe Doctrine has been urged, 
either one or the other house of Congress, or both 
houses, did not stand up to it." Mr. Seward said: *'It 
is true that each house of Congress has declined to 
assert it; but the honorable senators must do each 
house the justice to acknowledge that the reason why 
they did decline to assert the doctrine was, that it 
was proposed, as many members thought, as an ab- 
straction, unnecessary, not called for at the time." 
Mr. Mason spoke of it as having "never been sanc- 
tioned or recognized by any constitutional authority." 
Mr. Cass afterwards, in a very elaborate speech (of 
Jan. 28, 1856), gave his views of the history and char- 
acter of the doctrine. He placed it upon very high 
ground, as a declaration not only against European 
intervention or future colonization, but against the 
acquisition of dominion on the continent by Euro- 
pean powers, by whatever mode or however derived; 
and seemed to consider it as a pledge to resist such 
a result by force, if necessary, in any part of the con- 
tinent. He says: "We ought years ago, by Congres- 
sional interposition, to have made this system of 
policy an American system, by a solemn declaration; 
and, if we had done so, we should have spared our- 



THE MONROE DOCTRINE 323 

selves much trouble and no little mortification." 
Referring to Mr. Polk's message, in 1845, he said there 
was then an opportunity for Congress to adopt the 
doctrine, not as an abstraction, but on a practical 
point. "We refused to say a word; and, I repeat, we 
refused then even to take the subject into considera- 
tion." He denied the correctness of IMr. Calhoun's 
explanation (vide supra) , and contended that the non- 
colonization clause was intended to be, and under- 
stood by England to be, a foreclosure of the whole 
continent against all future European dominion, 
however derived. It may well be said, however, and 
such seems now to be the prevalent opinion, that the 
complaints of Mr. Cass and others of his school, of 
the neglect and abandonment of the Monroe Doc- 
trine, apply rather to their construction of the doc- 
trine than to the doctrine itself. 

That the declarations in Mr. Monroe's message 
arose out of the apprehension that the Holy Alliance 
sought to extend its system to the American colonies, 
and possibly to independent American States, there 
can be no doubt. The only points made by Mr. Mon- 
roe are — "Any attempt on their part to extend their 
system [the political system of the Holy Alliance] to 
any portion of this hemisphere"; and "Any inter- 
position for the purpose of oppressing them [the 
American States], or controlling in any other man- 
ner their destiny." It is observable that the protest 
is against certain modes of European action, and not 
against new acquisitions specifically, nor even in- 
ferentially, if made, for instance, by treaties in which 
there should be no coercion and no interposition by 
third powers, or by conquest in a war not waged for 
the policy or purpose objected to. Mr. Jefferson, in 



324 RICHARD HENRY DANA, JR. 

his letter above referred to, had noticed this subject, 
and placed among the acts we should oppose "their 
transfer to any power by conquest, cession, or acqui- 
sition in any way." Still, Mr. Monroe's Cabinet made 
no declaration on the point of transfer of dominion. 
It is also to be observed that Mr. Canning's proposi- 
tion to Mr. Rush was for a joint declaration by the 
two governments of a double proposition, — 1st, That 
they did not aim at the possession of any portion of 
the Spanish colonies for themselves; and, 2d, That 
"they could not see the transfer of any portion of 
them to any other power with indifference." This 
double proposition, communicated by Mr. Rush to 
the President and by him to Mr. Jefferson, and recom- 
mended by Mr. Jefferson and laid before the Cabinet 
is still not adopted in the message. Confining itself 
to a declaration against interposition to oppress or 
control, or to extend the system of the Holy Alliance 
to this hemisphere, the message avoids committing 
the government on the subject of acquisition, either 
by the United States or the European powers, and 
whether by voluntary cession or conquest. Possibly 
the administration may have paused at Mr. Jeffer- 
son's caution in his letter referred to: — "But we 
must first ask ourselves a question, — Do we wish to 
acquire any one or more of the Spanish provinces? 
— before we can unite in the proposed joint declara- 
tion." Mr. Jefferson confesses that, in his opinion, 
Cuba would be "the most interesting addition that 
could ever be made to our system of States"; yet is 
willing, in view of the great advantages to be gained 
by the joint declaration, to forego Cuba. The slave- 
holding interest was clearly looking to Cuba, not only 
as an addition to its political power in the Union, but 



THE MONROE DOCTRINE 325 

to prevent abolition of slavery there by some other 
power; and it is known that Mr. Adams had a no- 
ticeable leaning in favor of its importance to us in a 
military and commercial view. The Texas question 
was already looming in the distance; and it was but 
three years since we had acquired Florida, and but 
twenty years since we had purchased the vast Louisi- 
ana territory. Twenty-two years after this, we an- 
nexed Texas; and, twenty -five years after, we ac- 
quired by conquest California and New Mexico; and, 
for several years before the civil war of 1861, the 
lave-owner in the Union was exerting itself to annex 
Cuba. It is true the government had, as has been 
seen, exchanged declarations with England as to 
Cuba; but then, as later, when, in 1854, the tripartite 
alliance for the retention of Cuba by Spain was pro- 
posed, we were not willing to commit ourselves to 
absolute guaranties on that point: and a successful 
revolution in Cuba might have made, at any time, 
an opening for her annexation. When we compare 
the declarations in the message with the joint decla- 
ration proposed by Mr. Canning and recommended 
by Mr. Jefferson, and consider our own prior history 
and our then position, it certainly is a fair inference 
that the administration purposely avoided any spe- 
cific and direct statement as to transfer of dominion 
by competent parties, in the way of treaty, or by 
conquest in war. 

In further explanation of the Monroe Doctrine, it 
is to be noticed that it is correctly called a doctrine, 
and no more. There is no intimation what the United 
States will do in case of European interposition, or 
what means it will take to prevent it. The United 
States have steadily refused to enter into any arrange- 



326 RICHARD HENRY DANA, JR. 

ment with the other American States for establishing 
a continental system on that point, or for mutual 
defiance, or even to commit themselves in the way 
of pledge or promise. When the Spanish-American 
States wished to treat the message of 1823 as a 
"pledge" to them for the future, that construction 
of it was successfully resisted by the opposition, how- 
ever favorably it may be thought Mr. Adams and 
his Cabinet at first regarded it. And public opinion 
may be considered as settled on the point that the 
action of the nation, in any case that may arise, must 
be unembarrassed by pledge or compact; and, fur- 
ther, as equally settled, against the introduction of 
anything approaching the nature of a Holy Alliance 
for this continent, though it be in the interests of 
republican institutions. 

It has sometimes been assumed that the Monroe 
Doctrine contained some declaration against any 
other than democratic-republican institutions on 
this continent, however arising or introduced. The 
message will be searched in vain for any thing of the 
kind. We were the first to recognize the imperial 
authority of Don Pedro in Brazil, and of Iturbide in 
Mexico; and more than half the northern continent 
was under the sceptres of Great Britain and Russia; 
and these dependencies would certainly be free to 
adopt what institutions they pleased, in case of suc- 
cessful rebellion, or of peaceful separation from their 
parent States. 

As a summary of this subject, it would seem that 
the following positions may be safely taken: I. The 
declarations upon which Mr. Monroe consulted Mr. 
Jefferson and his own Cabinet related to the inter- 
position of European powers in the affairs of Ameri- 



THE MONROE DOCTRINE 327 

can States. 11. The kind of interposition declared 
against was that which may be made for the purpose 
of controlhng their political affairs, or extending to 
this hemisphere the system in operation upon the 
continent of Europe, by which the great powers exer- 
cise a control over the affairs of other European States. 
III. The declarations do not intimate any course 
of conduct to be pursued in case of such interposi- 
tions, but merely say that they would be "consid- 
ered as dangerous to our peace and safety," and as 
" the manifestation of an unfriendly disposition toward 
the United States," which it would be impossible for 
us to "behold with indifference"; thus leaving the 
nation to act at all times as its opinion of its policy 
or duty might require. IV. The declarations are only 
the opinion of the administration of 1823, and have 
acquired no legal force or sanction. V. The United 
States has never made any alliance with, or pledge 
to, any other American State on the subject covered 
by the declarations. VI. The declaration respect- 
ing non-colonization was on a subject distinct from 
European intervention with American States, and 
related to the acquisition of sovereign title by any 
European power, by new and original occupation or 
colonization thereafter. Whatever were the political 
motives for resisting such colonization, the principle 
of public law upon which it was placed was, that the 
continent must be considered as already within the 
occupation and jurisdiction of independent civilized 
nations. 

On this subject, the reader is referred to the follow- 
ing authorities: — Mr. Adams to Mr. Rush, July 2, 
1823; Mr. Monroe's message, December 2, 1823; Mr. 



328 RICHARD HENRY DANA, JR. 

Rush's Memoranda of Residence at the Court of 
London; Stapleton's Life of Canning; Brief wechsel 
zwischen Varnhagen von Ense und Oelsner, vol. iii; 
Mr. Clay's resolution, offered January 20, 1824; the 
ukase of the Emperor Alexander, September 4, 1821; 
the treaty between the United States and Spain, 22 
February, 1819; the Nootka-Sound Convention be- 
tween Spain and Great Britain of 28 October, 1790; 
Mr. Monroe's annual message, December 7, 1824; 
Mr. Adams's messages of December 26, 1825, and 
March 26, 1826; Mr. Clay's despatch to Mr. Poinsett, 
March 25, 1825; Mr. Webster's speech on the Panama 
mission, Webster's Works, iii, 178; Mr. Everett's 
speech on the same. Congressional Debates, 1826; 
Mr. Calhoun's speech on the Yucatan question, Cal- 
houn's Works, iv, 454; Mr. Polk's annual message 
of December 2, 1845; his special message on Yucatan, 
of April 29, 1848; the debate in the Senate on the 
Yucatan question, April and May, 1848, Congressional 
Globe, 1848, p. 712 et seq.; the Clayton-Bulwer treaty, 
United-States Laws, x, 995; Debates in the United 
States on the Clayton-Bulwer treaty, 1855-56, Con- 
gressional Globe and Appendix for first Session Thirty- 
fourth Congress; North-American Review, 1856, 
page 478; Mr. Everett's letter of September 2, 1863, 
on the Monroe Doctrine, in the New-York Ledger; 
Letter of J. Q. Adams on the same, to the Rev. Dr. 
Channing, of August 11, 1837; Mr. Canning's speech 
of December 12, 1826; Mr. Buchanan's article on the 
Monroe Doctrine, in his History of his Administra- 
tion, page 276. 



THE MONROE DOCTRINE 329 

French Intervention in Mexico 
This intervention began with a convention "made at Lon- 
don on the 31st of October, 1861, between Great Britain, France 
and Spain, professedly for the purpose of obtaining redress and 
security from Mexico to the citizens of the contracting powers." 
The direct object was to force the payment by Mexico of bonds 
held by, and the collection of damages for injuries inflicted on 
citizens of, the contracting powers, and also to secure a more 
efficacious protection for the persons and property of then- citi- 
zens residing in Mexico in the future. The contracting powers 
"engaged not to seek for themselves any acquisition of terri- 
tory or special advantage, nor to exercise in the internal affairs 
of Mexico any influence of a nature to prejudice the right of the 
Mexican nation to choose and constitute the form of its govern- 
ment," and that the occupation of territory and "other opera- 
tions" should be limited to such as should be judged suitable to 
secure the above objects; in short, it was war on Mexico, not 
only to obtain payment of debts and damages, but to change 
the government to one more secure, which change, however, 
was to be effected by the Mexicans themselves, and until these 
objects were attained, armed occupation was to be acquired 
and maintained. 

Mr. Seward, Secretary of State, suggested an arrangement by 
which the United States would enable Mexico to pay her just 
debts; but that alone was not considered satisfactory, as the 
contracting powers insisted that one of their chief objects was 
to secure the future good treatment of resident foreigners. Mr. 
Seward admitted the right of the powers to judge for themselves 
whether they had sustained grievances that required them to 
levy war; but that the United States had a deep interest that 
they should not interfere with the right of the Mexican people 
to choose the form of their own government. 

In April, 1862, the Spanish and English withdrew, on the 
ground that the French had gone beyond the terms of the con- 
vention in giving military aid to the party in favor of establish- 
ing an imperial government in Mexico. Under French protec- 



S30 RICHARD HENRY DANA, JR. 

tion, an assembly of notables selected by the imperial party 
offered the throne to Archduke Maximilian of Austria, without 
even the pretense of a general vote of the Mexican people, and 
this government was acknowledged and protected by France. 
Both the United States and Great Britain refused to recognize 
this new government; but acknowledged a state of war and 
held themselves neutral. 

The government of the United States, during the first three 
years of this interference on the part of France, was so occupied 
with the Civil War that only occasional protests were made; 
but soon after the Civil War was over, at the end of 1865, Mr. 
Seward took more decided steps. He then made it clear that in 
the United States there was much discontent, not with the 
French war in Mexico, but with the attempt of France to es- 
tablish by force a monarchical government in an American state 
which itself preferred a republican form of government; and 
expressed the wish that France "might find it compatible with 
its interests and high honor to withdraw from this aggressive 
attitude in Mexico," which meant, in diplomatic language, as 
Bancroft says in his Life of Seward, that France must "with- 
draw or fight." A United States "army of observation" under 
command of General Sheridan w^as established on the banks of 
the Rio Grande and had much to do with the success of Seward's 
diplomacy.^ In 1866, France promised to withdraw by the fol- 
lowing year, but later expressed a wish to postpone the depar- 
ture. To this Secretary Seward replied by cable that the United 
States "would not acquiesce" in postponement, and the French 
withdrew from the city of Mexico in February, 1867. Maxi- 
milian's forces were routed and he was shot June 19 of the same 
year.^ 

Venezuelan Boundary Question 

A dispute had arisen between Great Britain and Venezuela 
as to the boundary line between British Guiana, a colony of 
Great Britain, and the Republic of Venezuela. In that dispute, 

^ See Personal Memories of P. H. Sheridan, vol. ii, pp. 20C-228. 
^ See Dana's Wheaton, note 41, pp. 126-132, and Moore's Interna- 
tional Law Digest, vol. vi, sections 956-957. 



THE MONROE DOCTRINE 331 

which had been going on for many years, Venezuela claimed — 
and with a sufficient prima facie case to make it worthy of con- 
sideration — that Great Britain had been extending its bound- 
ary claims westward into Venezuelan territory, and was un- 
willing to arbitrate the whole question, but only a portion of her 
most westerly and recently extended claims. 

In response to the annual message of President Cleveland 
touching on this subject, a resolve was passed by both Houses 
of Congress and approved February 2, 1895, in which it was 
"earnestly recommended" that Great Britain and Venezeula 
refer the dispute to "friendly arbitration." In accordance with 
this resolution, a correspondence was begun between Secretary 
Olney for the United States and Lord Salisbury for Great Britain, 
in the same year. Mr. Olney, in his letter of July 20,^ claimed 
that the Monroe Doctrine, declaring against "future acquisi- 
tion by European powers" or trying to "extend their political 
system to any portion" of America, applied to a boundary dis- 
pute in which it was claimed with some show of justice that 
extensions of territory were being made, and that the United 
States could not "behold" such a possible extension with "in- 
difference," and urged arbitration, covering the whole of the 
territory claimed by either party, as the only proper method 
of settling the dispute. 

President Cleveland, in a subsequent message to Congress 
dated December 2, 1895, •^ touched on this dispute between Great 
Britain and Venezuela,^ and referred to the dispatch by Secre- 
tary Olney of July 20, "in which" the message says "the atti- 
tude of the United States was fully and distinctly set forth. 
The general conclusions there reached and formulated are in 
substance that the traditional and established policy of this 
government is," etc.; "that, as a consequence, the United States 
is bound to protest against the enlargement of the area of British 
Guiana in derogation of the rights and against the will of Vene- 

1 Sen. Doc. No. 31, 54 Cong., 1 Sess., p. 4. 
« Ibid., p. 4. 

^ This occupied three fourths of a page out of a message 34 pages 
in length. 



332 RICHARD HENRY DANA, JR. 

zuela; that considering the disparity," etc.; "the territorial dis- 
pute between them can be reasonably settled only by . . . arbi- 
tration." Lord Salisbury's reply, though dated November 26, 
was not received in Washington till some time after this mes- 
sage. In that reply, ^ Lord Salisbury agreed to the Monroe Doc- 
trine in so far that "any fresh acquisitions on the part of any 
European state would be a highly inexpedient change"; but 
asserted that Her Majesty's government must not be understood 
as accepting the Monroe Doctrine, and denied that it was in 
any way " clothed with the sanction . . . of international law," 
and claimed that "the disputed frontier of Venezuela has nothing 
to do with any of the questions dealt with by President Monroe," 
and gives the United States no right to demand arbitration be- 
tween Great Britain and Venezuela, and called such a demand 
by the United States a "novel prerogative." 

In a letter to the British Ambassador at Washington of the 
same date,^ Lord Salisbury stated that the apparent extensions 
of the boundary line into Venezuelan territory were explained by 
the fact that Great Britain had, on previous occasions, placed 
the boundary line short of its real claims, in hopes of securing a 
compromise with Venezuela, and failing in that, had pushed the 
boundary to the extent of what it considered its full rights. In 
conclusion. Lord Salisbury refused to arbitrate the whole dispute, 
but was willing to arbitrate with reference to the claims west of 
the Schomburgk line, so-called, drawn by an engineer of that 
name in Her Majesty's employ in 1840. This left a portion only of 
the disputed territory open to arbitration, and more particularly 
excluded territory near the mouth of the Orinoco, which con- 
trolled the entrance to the great river running through Venezuelan 
territory. 

After receiving this refusal to arbitrate the dispute in a sub- 
stantial manner, President Cleveland, in a special message of 
December 17,^ enclosed copies of the above correspondence, 
answered some of Lord Salisbury's arguments in relation to the 

1 Sen. Doc. No. 31, 54 Cong., 1 Sess., p. 22. 

2 Ihid., p. 26. 

^ Ihid., pp. 1-4. 



THE MONROE DOCTRINE 333 

Monroe Doctrine, and then went on to say, it is "now incumbent 
upon the United States to take measures to determine, with 
sufficient certainty for its protection, what is the true division 
line between the repubhc of Venezuela and British Guiana," and 
suggested to Congress a commission with "adequate appropria- 
tions," to be appointed by the executive, to investigate and re- 
port. 

"When such report is made and accepted it will in my opin- 
ion be the duty of the United States to resist by every means in 
its power, as a willful aggression upon its rights and interests, 
the appropriation by Great Britain of any lands or the exercise 
of governmental jurisdiction over any territory which after in- 
vestigation we have determined of right belongs to Venezuela. 

"In making tliese recommendations I am fully alive to the 
responsibility incurred, and keenly realize all the consequences 
that may follow. 

"I am nevertheless firm in my conviction that while it is a griev- 
ous thing to contemplate the two great English-speaking peoples 
of the world as being otherwise than friendly competitors in the 
onward march of civilization, and strenuous and worthy rivals 
in all the arts of peace, there is no calamity which a great nation 
can invite which equals that which follows a supine submission 
to wrong and injustice and the consequent loss of national self- 
respect and honor, beneath which are shielded and defended a 
people's safety and greatness." 

Both Great Britain and the United States were thunderstruck 
by this message. The stock market in the United States, which 
had been in a weak condition, fell rapidly on the mere suggestion 
of war, for which we were but inadequately prepared, and not 
only much of the opposition press, but some of the independent 
papers, especially in New York and Boston, which had hitherto 
supported President Cleveland, attacked this message with 
ferocity. Congress, however, was almost a unit in support of 
President Cleveland's position, and so was most of the press 
of the country, not under Wall Street influences. 

Among the attacks, it was stated that, in the first message, 
the phrase used by Cleveland, "the enlargement of area of 



334 RICHARD HENRY DANA, JR. 

British Guiana in derogation of the rights and against the will 
of Venezuela," was a finding on the part of President Cleveland 
that Great Britain was in the wrong. This statement was re- 
peated and this quotation to substantiate it was made again 
and again by such papers as the New York "Nation." This 
quotation, omitting the words "that as a consequence" and 
taken alone by itself without reference to the rest of the message, 
might surely seem to have such a meaning; but the words in 
question are but a survey of the "general conclusions" of Mr. 
Olney's letter of July 20, and in that letter, Mr. Olney, Secre-* 
tary of State, says : — 

"It is not admitted, however, and therefore cannot be 
assumed that Great Britain is in fact usurping dominion over 
Venezuelan territory. While Venezuela charges such usurpa- 
tion. Great Britain denies it, and the United States, until 
the merits are authoritatively ascertained, can take sides with 
neither." 

Lord Salisbury, in his reply of November 26, clearly under- 
stands the attitude of the United States as not committed to 
any finding, and says "the government [United States] appar- 
ently have not formed and certainly did not express any opin- 
ion upon the actual merits of the dispute. The government of the 
United States do not say that Great Britain or that Venezuela 
is in the right in the matters that are in issue"; and still more 
is it apparent that President Cleveland was making no finding, 
when we come to the special message which caused the excite- 
ment, and which puts it conditionally, "if any European power 
by an extension of its boundaries," and again, "without any 
conviction as to the final merits of the dispute, but anxious to 
learn if the government of Great Britain sought, under claim to 
boundary, to extend her position, . . . this government proposes 
. . . arbitration"; and arbitration being declined, the message 
proposed a commission to determine "the true divisional lines." 
Taking it altogether, and apart from the excitement of the mo- 
ment, it is quite clear that the sentence is onlj^ a statement of a 
conclusion that our government was bound to protest against 



THE MONROE DOCTRINE 335 

such an enlargement of area, incase any such enlargement should 
in fact exist. ^ 

"Whatever may be said as to the harshness of the wording of 
the special message of December 17, for which there is, however, 
recent diplomatic authority, it had the effect of arousing the 
British public conscience. The correspondence, covering many 
years and different administrations, on this subject, had all been 
pigeon-holed in the Foreign Office of Great Britain, excepting 
that Gladstone, in 1885, had proposed a more liberal arbitra- 
tion " than his successor, Lord Salisbury, was willing to carry 
out. Public opinion in England being enlightened and stirred 
by this message, forced Lord Salisbury to submit the whole 
question to arbitration without reservation except that actual 
settlements should be reserved and that "adverse holdings for 
fifty years" should make a good title.^ This "actual settlement" 
reservation was suggested by Secretary Olney and embodied in 
the arbitral agreement in accordance with which the arbitra- 
tion was to be conducted following the precedent made in the 
Geneva Arbitration on the Alabama claims. This removed the 
last objection by Great Britain to complete arbitration.'* The 
treaty was signed February 2, 1897, before the United States 
commission of inquiry had made its report. Later, President 
Cleveland, in his "Political Problems," said: — 

"Some may be surprised that this controversy was so long 
chronic and yet in the end yielded so easily to pronounced treat- 
ment." 

The International Commission of Arbitration rendered a 
unanimous award October 3, 1899, and in that, while giving 
Great Britain a large share of the interior territory in dispute,^ 

1 See also Presidential Problems, by Grover Cleveland, p. 258. 

2 Letter of Lord Granville, May 15, 1885. 

^ Art. IV, rule (a) of treaty, Great Britain Foreign Office, Venezuela 
No. 1,1899, p. 3. 

^ Letterof Mr. Olney to Sir Julian Pauneefote, July 13, 189G,pp. 253- 
254, U. S. For. Rels., 1896. 

^ Message of President McKinley to Congress, Dec. 5, 1899, House 
Doc, vol. i, 56th Cong., 1st Sess., 1899, p. xxxii. 



336 



RICHARD HENRY DANA, JR. 



gave to Venezuela no little land on and near the coast, which 
was of great value as it commanded the mouth of the Orinoco, 
and which was a part of the territory Lord Salisbury, in his 
correspondence of 1895, was unwilling should be submitted to 







■■■•"■■■•"ExtremeBritish Claim (18951 

0000000000 Schomburgh Line, East of which Grent Britain 
■would not submit to arbitration in 1895 



Boundary established by Arbitration Commission in 1899 



^1— t— I— I— Extreme Venezuelan Claim 



arbitration. Great Britain was allowed about one quarter of 
the interior land which she was willing to arbitrate in 1895. 

I learn, on sufRcient authority, that President Cleveland 
feared, if this matter were allowed to drift on till open rupture 
came between England and Venezuela, we should be involved 
in the war. Diplomatic relations between England and Vene- 
zuela had already been broken off, and armed conflicts, followed 
by threats of war measures, had already occurred in the dis- 
puted territory. Should war have begun, in which it must appear 
that there was good reason to believe England's claim to ter- 
ritory had been increased so that her action would seem to be 
the forcible extension of territory, the American people would 
become aroused and force our government to side with Vene- 
zuela. Then Great Britain could not retreat with honor. In- 



THE MONROE DOCTRINE 337 

evitably it would then be too late to get arbitration by mere 
suggestion of force, while, on the other hand, Cleveland, being 
a man of peace above all things, foresaw the great advantage of 
making this suggestion in the diplomatic stages of the contro- 
versy. Some passages in President Cleveland's Venezuelan 
Boundary Controversy ^ sustain this view. 

As to acquiescing in the policy maintained by Lord Salisbury, 
that England, in a case of arbitrating a boundary dispute, could 
exempt from arbitration, at her discretion, any part of the ter- 
ritory in dispute, that would have been a fatal precedent for us, 
for example, in the subsequent dispute with Great Britain as to 
the boundary between the United States and her Canadian 
provinces. As a result of this latter arbitration, almost the whole 
territory was given to the United States ; but had the doctrine of 
withholding part of the disputed territory been established. Great 
Britain could easily have refused to arbitrate upon more than a 
portion of this territory, which eventually came to us. 

German Claims for Reparation and Apology against 
THE Haytian Government 

In 1897, the government of Hayti, relying upon its own view 
of the Monroe Doctrine, applied to the United States for its 
influence to prevent coercion by Germany, which was seeking 
reparation and apology for injuries to a German subject residing 
in Hayti. Mr. William M. Evarts, Secretary of State, answered, 
"The Monroe Doctrine to which you refer is wholly inapplicable 
to the case," and instructed Mr. Powell, our Minister in Hayti, 
that it is not "the duty of the United States to protect its Amer- 
ican neighbors from the responsibilities which attend the exer- 
cise of independent sovereignty." 

The United States and Nicaragua 

Having established the principle that other nations may de- 
mand reparation and apology, by force if necessary, without 
contravening the Monroe Doctrine, our government feels itself 

^ Presidential Problems, by Grover Cleveland. 



338 RICHARD HENRY DANA, JR. 

free to make the same demands. President Zelaya of Nicaragua 
was reported to have tortured and shot two Americans, Groce 
and Cannon, in the autumn of 1909. Secretary of State Knox, 
in a strong message to Zelaya, demanded an immediate and full 
explanation. United States vessels with marines were sent to 
the coast, ready to take action in case the truth of these reports 
could be confirmed, and diplomatic relations with Nicaragua 
were broken off. 

Collection of Claims by Foreign Governments 
AGAINST Venezuela 

In 1902-3, Great Britain, Germany and Italy, by a combined 
blockade of the ports of Venezuela, compelled the payment of 
claims, partly money engagements, and partly damages for in- 
jury to the subjects of those nations residing in Venezuela. Ger- 
many, in its note of December 11, 1901, stated to the United 
States government its plan to use coercion in case Venezuela 
refused settlement, saying, "We declare especially that under 
no circumstances do we consider in our proceedings the acqui- 
sition or the permanent occupation of Venezuelan territory," 
though Germany might have to resort to "the temporary occu- 
pation on our [its] part of different Venezuelan harbor-places 
and the levying of duties in those places." 

President Roosevelt, in his message of December 3, 1901, had 
re-stated the principles of the Monroe Doctrine, and had added, 
"We do not guarantee any state against punishment if it mis- 
conducts itself, provided that punishment does not take the form 
of the acquisition of territory by any non-American power." 

Later, being forced by the blockading of her ports, Venezuela, 
through the United States government, conveyed a proposal 
of arbitration, and this was accepted by the powers, reserving 
some special war-claims. The Hague Tribunal was to be the 
arbitrator. It considered, however, only the claim of the prefer- 
ential payment to the blockading powers, which claim, by its 
decree of February 22, 1904, was sustained. The amount of the 
claims, with the special war exceptions, was finally decided by 
mixed commissions at Caracas. 



THE MONROE DOCTRINE 339 

San Domingo Protocol 

The decision of the Hague Tribunal, in the case of the col- 
lection of claims against Venezuela, in favor of preferential 
payment of the claims of the blockading powers, before the pay- 
ment of the claims of other nations, had a more important 
bearing on the Monroe Doctrine than would at first appear. 

It had been the traditional policy of the United States not 
of itself to compel or to join with other countries in compelling 
by military or naval force, its financial claims against other 
American countries. Continuing to follow this policy would, 
under the Hague decision, postpone the claims of the United 
States and its citizens until the claims of all other nations willing 
to use force had been satisfied. In case the delinquent country 
were rich and prosperous, this postponement might not be so 
serious a matter; but if the delinquent country were practically 
bankrupt, and if it would take a generation or more to ])ay off 
the force-preferred claims, then the United States would prac- 
tically be deferring the rights of its citizens to the next world, 
as far as lives in being are concerned. 

In this same connection, though independent of the decision 
of the Hague Tribunal, arises the question as to the so-called 
"temporary occupation" of the territory, mainly customs ports, 
of American countries by European naval forces for the purpose 
of collecting debts. Such occupation, if the delinquent country 
were rich and the debts moderate, would be "temporary" in the 
sense of being short; but if the delinquent country were bank- 
rupt and the obligation large, such "temporary occupation" 
might become practically permanent. 

Take, for example, the "temporary occupation" of Egypt by 
Great Britain, which has lasted over twenty years, with no sign 
of its coming to an end; or the "temporary occupation" of 
Mexico by the French from 1862 to 1867, which would not have 
ceased but for the demand of the United States. 

A case of indefinite occupation was proposed by Spain in 1866 
in connection with the Chincha Islands. Spain proposed to oc- 
cupy these islands and sell guano, to recoup herself for her ex- 



340 RICHARD HENRY DANA, JR. 

penses in the war with Peru. This being an indefinitely long 
occupation, Secretary Seward notified Spain that such a prece- 
dent would "severely tend to disturb the harmonious relations" 
between the United States and Spain, which attitude caused 
Spain to give up the proposed "temporary occupation." 

The probability of just such a prolonged occupation, and the 
indefinite postponement of the claims of United States citizens, 
arose in the case of San Domingo in 1905. A protocol had been 
arranged by President Roosevelt with the government of San 
Domingo, by which the United States was to take charge of the 
customs revenue of San Domingo, and pay a percentage for the 
support of the government of that country, the balance to be paid 
to the creditors of other countries, including those of the United 
States. This protocol with an explanatory message ^ in its support 
was sent to the United States Senate February 7th, 1905. While 
this was of course an extension of the Monroe Doctrine to a point 
that might fairly be said to make it a new doctrine, yet there had 
been at least partial precedents for this course of action. When the 
English, Spanish, and French governments were planning to take 
forcible measures, including temporary occupation of territory, to 
collect claims, etc., against Mexico in 1861, Mr. Seward proposed, in 
his note to the powers, dated December 4, that the United States 
might make a treaty with Mexico by which we should guaran- 
tee satisfaction of all just money claims and secure repayment 
to ourselves. A loan of $11,000,000 was suggested. ^ As secu- 
rity, the American government was to have a mortgage on all 
the public lands, minerals, etc., of Lower California and Chi- 
huahua and other provinces bordering on the United States. 
A commission, composed of three Mexicans and two Americans, 
was to assume the administration of the lands, etc.^ It proved, 
however, that money payment alone was not satisfactory to the 

1 Presidential Messages, 1905; House Documents 59th Cong., 1st 
Sess., vol. i, pp. 334-342. Protocol; Ibid., pp. 342-343. 

^ Seward to Adams, June 7, 1862. 

^ Lord Lyons and Earl Russell, Dec. 31, 1861, p. 418; Exec. Doc. 
1861-2, vol. viii; Jas. Corwin to Seward, Mar. 24, 1862. 



THE MONROE DOCTRINE 341 

powers, and when the treaty came to the United States Senate, 
it was found to be of no use, and was rejected on resolution of 
February 25, 18G2. 

Again, in 1880, Secretary Evarts, and in the next year Sec- 
retary Blaine, suggested that the United States would guaran- 
tee to the powers seeking money compensation from Venezuela, 
monthly payments to satisfy the claims of the creditor nations. 
In case of default in the installments, "the agent placed there 
by the United States and acting as trustee for the creditor 
nations, shall be authorized to take charge of the custom-houses 
of Laguayra and Puerto Cabello, and receive from the monthly 
receipts a sufficient sum to pay the stipulated amounts." 

The protocol signed by President Roosevelt, which amounted 
to a voluntary assignment by San Domingo to the United States 
for the benefit of creditors, was not at first accepted by the Senate. 
President Roosevelt as a modus vivendi appointed agents under an 
agTeement with the government of San Domingo, and to the satis- 
faction of the creditors, by which these agents should collect 
the revenues under the general scheme as proposed in the pro- 
tocol. After two years' delay, the United States Senate ratified 
the protocol and the treaty was duly signed February 8, 1907.^ 

Forcible Collection of Debts Regulated at the 
Hague Peace Conference 

A convention respecting the limitation of the employment 
of force for the recovery of contract debts was adopted at the 
Hague Peace Conference, October 18, 1907. This provided in 
general that "recourse to armed force for the recovery of con- 
tract debts claimed from the government of one country by the 
government of another country as being due to its naturals" 
should not be had unless "the debtor state refuses or neglects 
to reply to an ofl'er of arbitration, or after accepting the offer 
prevents any compromise from being agreed on, or after arbi- 
tration fails to submit to the award." This, it is believed, is a 

1 Treaty accepted and secrecy removed Feb. 25, 1907. Senate Journal, 
59th Cong., 2d Sess., p. 353. 



342 RICHARD HENRY DANA, JR. 

great step in advance towards averting armed intervention.^ Dr. 
Don Louis Maria Drago, Argentine minister for foreign afifairs, 
brought this plan to the attention of the United States at the 
time of Venezuela's difficulties in 1902. Alexander Hamilton 
had early given definite form to the same principle. This plan, 
called " Drago doctrine," was brought to the attention of the 
Hague Peace Conference of 1907, by a resolution adopted at Rio 
de Janeiro, the year before. ^ 

The United States Senate, on April 17, 1908, ratified this 
convention, with the understanding that "recourse to the per- 
manent court for this purpose can be had only by agreement 
thereto through general or special treaties of arbitration here- 
tofore or hereafter concluded by the parties in dispute." 

The Hague Convention of 1907 established a permanent court 
of arbitration for the settlement of international disputes, in 
which "neither honor nor vital interests are involved." This 
was ratified by the United States Senate April 2, 1908, subject 
to reserves of declaration.^ 

General Conclusions 

From the above precedents, since Mr. Dana's note was written, 
the Monroe Doctrine seems to include the following principles : 

No foreign country may establish in an American country, 
and maintain by force, a monarchial form of government con- 
trary to the wishes of the inhabitants of that American country. 
This is clearly within the original doctrine. A forcible increase 
of territory in America by a European country may be resisted, 
and if there is reason to apprehend that such an increase is being 
made in a boundary dispute, the United States may demand 
that the whole dispute be arbitrated. Though this may follow 

1 See Texts of the Peace Conferences of the Hague, 1899-1907, by 
James Brown Scott, pp. 193-198. 

- See the resolution adopted at the International Conference of 
American States, held at Rio de Janeiro, July 21 to Aug-. 26, 1906, Sen. 
Doc. No. 365, 59th Congress, 2d Sess., p. 14. (Senate, 5073, 1906-7.) 

^ See Texts of the Peace Conferences of the Hague, 1899-1907, by 
James Brown Scott, p, 193. 



THE MONROE DOCTRINE 343 

as a logical consequence from the original message of President 
Monroe, it is not explicitly within it. The United States is not 
to protect American countries from their own misconduct against 
other nations. Foreign nations may by force temporarily occupy 
American countries for the purpose of collecting claims. This 
has been modified by the Hague treaties requiring arbitration, 
or at least offers of arbitration, as to the amount of the claims, 
before such forcible occupation. European occupation of terri- 
tory in America for the purpose of collecting claims, which, 
though declared to be "temporary," is likely to be for a long and 
indefinite period, the United States may resist. 

How foreign countries may collect large claims against an im- 
poverished country, which would require too long and inde- 
finite occupation, has been provided for by President Roosevelt's 
San Domingo plan, which in that island has secured peace, 
stopped revolutions, and contented all its creditors. This, though 
a natural corollary of the already somewhat extended Monroe 
Doctrine, was clearly not in the original. Since Mr. Dana's note 
was written, the Monroe Doctrine, with President Cleveland's 
interpretation of It, has received the "sanction" of Congress in 
the Venezuelan boundary dispute in 1895, and, together with 
President Roosevelt's corollary, it has received the "sanction" 
of the United States Senate in the San Domingo treaty of 1907. 

Authorities 
See Moore's Int. Laic Dig. (1906), vi, 368-604; Oppenheim's Int. 
Law, London (1905), i, 66, 188-191; Elements Int. Law, G. B. Davis 
(1908), 110-115; Woolsey's Int. Law (1878), § 180; Wharton's Int. Law 
Dig., §§ 57-65, 150 f., 287; Tucker's Monroe Doctrine (1903); Halleck's 
Int. Laio (1908), i, 92, 95; T. J. Lawrence's hit. Laio (1895), 131, 248- 
251; Reddaway's Monroe Doctrine, England (1898); T. B. Edington's 
Monroe Doctrine (1904); Phillimore's Int. Law; A. A. Stockton's Monroe 
Doctrine and Other Addresses (1898); What is the Monroe Doctrine? 
Filley (1905); Prof. Hugo Miinsterberg's The Americans, 221-225; "San 
Domingo Question," F. G. Newlands, North American Review, June, 
1905; G. S. Boutwell's The Venezuelan Question and the Monroe Doc- 
trine (1896) ; A. C. Coolidge (in his United States as a World Power, 1908) ; 



344 RICHARD HENRY DANA JR. 

Monroe Doctrine, Am. Hist. Leaflets, N. Y., No. 4, 1892; " Genesis of the 
Monroe Do trine," W. C. Ford, "J. Q. Adams and his Connection with 
the Monroe Doctrine," Proceedings Mass. Hist. Sac, Jan. 1902; Hen- 
derson (in his Diplomatic Questions, 1901), Monroe Doctrine; J. A. Kas- 
son's Monroe Doctrine, etc. (1904); J. F. McLaughlin, The Monroe 
Doctrine (1896); J. B. McMaster (1896) (in his With the Fathers); A. T. 
M.ahan, Naval Administration and Warfare (1908); Theodore Roosevelt, 
American Ideals (1897); Grover Cleveland, Presidential Problems, 
Venezuelan Boundary Question; Wilson and Tucker, International Law 
(1910), 83, 101. 



XV 

ARGUMENT BEFORE THE HALIFAX FISH- 
ERY COMMISSION 

[The argument of Mr. Dana before the Fishery Commission 
at HaUfax, Nova Scotia, 1877, should not be published without 
disclosing the "secret history" of the Commission and of its 
"astounding" award. In the biography of Mr. Dana, from 
which I have just quoted, Mr. Adams says: "The time for that 
has not yet come"^ [1890]; but now, a whole generation after 
the award, the time may well be said to have arrived if it is ever 
to come, and that it should ever come is plain, because to tell the 
secret history is not merely to regret the unalterable past. The 
fisheries dispute still remains an unsettled cause of irritation 
between Great Britain and the United States, and the astound- 
ing award must be revised before a basis of permanent agree- 
ment can be reached. 

By the Treaty of 1818, Great Britain had a right to exclude 
United States vessels from fishing within three miles of her coasts 
in a great part of her North American domain, and the United 
States always had a right, of course, to place duties, and pro- 
hibitive duties if she wished, on the importation of any fish or 
fish-products. 

In 1871, the United States and Great Britain made the Treaty 
of Washington. This was mainly concerned with the celebrated 
Alabama Claims, but also included the fisheries; and by the im- 
portant clauses relating to the latter, the United States vessels 
were to have a right to fish within the three-mile limit from which 
they were excluded by the Treaty of 1818, and Canadians were 

^ This note has been submitted to and approved by the gentlemen 
who were secretaries of the two leading counsel for the United States 
at the time of the Halifax Arbitration. 



346 RICHARD HENRY DANA, JR. 

to be allowed to bring their fish and fish-products into the United 
States free of duty. This arrangement was to last for twelve 
years, and as much longer as both parties to the treaty were 
satisfied. 

In drawing this Treaty of Washington in 1871, it was found 
impossible to agree upon the relative value of these two conces- 
sions; and it was therefore provided that a special commission 
should be appointed, later called the Halifax Commission, to 
appraise them. It was hoped, to use the words of Mr. Thompson, 
the chief counsel for Great Britain, in his opening argument, 
that the award might be "the basis upon which future and more 
lasting negotiations may be entered into, and so a source of con- 
tinued national and local irritation be entirely removed." 

The award was for $5,500,000, or at the rate of nearly half a 
million a year. When the case was argued before the Halifax 
Commission, five fishing seasons under the treaty had already 
elapsed. The whole profit, on a most liberal scale, on all the 
kinds of fish caught by vessels from the United States in or near 
the three-mile limit in question, including all that were caught 
within the Gulf of St. Lawrence during each of these five years, 
was, on the average, not equal to one twentieth of the yearly 
rate of the award, without offsetting anything at all for the right, 
which the Canadians struggled so earnestly to secure as some- 
thing of great value, of selling their fish free of import duties in 
the United States. This Mr. William M. Evarts, Secretary of 
State, made plain in his illuminating note on the award in his 
official report to President Hayes. ^ 

The Commission or Tribunal before which the case was ar- 
gued consisted of one member representing the United States, 
one representing Great Britain, each paid by his own govern- 
ment, and a third, the referee or arbitrator, who was also the 
President, and was paid one half by each government. The 
decision was signed by the referee and the commissioner from 
Great Britain, and was dissented from completely by the United 
States commissioner. Unfortunately, no grounds or reasons 

^ Documents and Proceedings of the Halifax Commission, 1877; Ex. 
Doc. 45th Cong., 2d Sess., No. 89, vol. i, pages vii-xiv. 



HALIFAX FISHERY COMMISSION 347 

were given by the Commission to explain the "astounding" 
award. 

We come now to the secret histoiy. Mr. Dana, in a letter to 
Mr. Evarts, dated Halifax, Nova Scotia, November 25, 1877, 
written a few days after the award was made, says: "The bad 
result I attribute entirely to the composition of the tribunal. 
We have struggled against this and aimed at counteracting the 
influences which we saw from the first were likely to be most 
unfortunate." 

As to the arbitrator, M. Maurice Delfosse, Mr. Dana de- 
scribes him in this same letter as "a gentleman of fine feeling, 
entirely inexperienced in anything like a judicial inquiry into 
facts or the weighing of testimony, and by temperament and 
constitution subject to the influence of a more robust temper 
and powerful will, aided by great tact and sagacity." 

In addition to that, M. Delfosse had the European notions 
of judicial proceedings. 

Unfortunately, the Treaty of Washington put the United 
States in the attitude of debtor.^ As Mr. Dana said in the letter 
of November 30, 1877, to Mr. Evarts : "The wording of the treaty 
was against us. ... If the article had put the alternative to 
the tribunal, which was the debtor, if either, so that our case 
would have presented a demand on our part, we should have had 
a far stronger position." 

The United States then being a confessed debtor, the very 
arguments of counsel and evidence of witnesses that tended to 
show we owed nothing at all, or less than nothing, seemed to M. 
Delfosse to be in the nature of very "ingenious" attempts at 
evading officially declared responsibility, and doubtless had the 
effect on his mind of discrediting our whole case. He seemed to 
have had that European reverence for official statements later 
exhibited in the first Dreyfus trial in France. He frequently 

^ The wording of the treaty was that the Halifax Commission was 
to be appointed "to determine . . . the amount of any compensation 
which in their opinion ought to be paid by the government of the United 
States to the government of Her Britannic Majesty in return for the 
privileges accorded." (Art. xxii.) 



348 RICHARD HENRY DANA, JR. 

showed, in his conversation, that he thought cross-examination, 
by which we exposed the weaknesses of the British testimony, 
was a mere lawyers' trick to confuse witnesses. 

As to the United States member of the tribunal, it should be 
understood in the first place that it was of the utmost import- 
ance that he should know the case thoroughly, be able to pre- 
sent the statistics and arguments tellingly, and have a strong 
personal attraction; because, in the conferences, he would have 
the chance to get at exactly what misapprehensions might be in 
the mind of the arbitrator, and correct them in conversation, 
while the counsel, though they argued never so ably, had to ar- 
gue at arm's length, and could only guess as to what might be 
going on in the arbitrator's thoughts. Ex-Governor Clifford of 
Massachusetts had been appointed our commissioner, but unfor- 
tunately he died shortly before the case was opened, and another 
man was put in his place. Of this American commissioner, whom 
I shall call Mr. X, Mr. Dana in a letter to Mr. Evarts says : — 

"I must speak freely in strict confidence. He has been worse 
than useless. I have some notion that his powers (so to speak) 
are diminished by years of sloth and heavy feeding. Whether 
anything serious has happened to him, I do not know. I have 
never been able to get from him anything that could be called 
conversation; and when we have spoken about the case, I was 
never satisfied whether he understood it or not. His first public 
appearance was at a dinner given to us by the Bar, at which he 
made two speeches, the last volunteered. The effect was about 
an equal proportion of wonder and amusement. They were po- 
lite about it, but evidently thought he was a strange fish. The 
only explanation not impeaching his intellect was an excess of 
champagne. At a dinner given by M. Doutre, he volunteered 
a speech, where none was expected, which was worse than that 
at the Bar dinner. It caused us great mortification. Just before 
the decision, at a dinner by Sir A. Gait, he volunteered another 
speech, which was so distressing to us that the dinner broke 
up somewhat prematurely to save us the risk of another. You 
know M. Delfosse well enough to understand that he not only 
would have no confidences with such a man, but would prob- 



HALIFAX FISHERY COMMISSION 349 

ably look upon him with disgust, while Sir A. Gait would adroitly 
obtain a great if not mastering influence over him. During the 
seventy-six days of our session, I do not remember that the pre- 
sident ever turned to the right, where sat the United States mem- 
ber, for conference, but invariably to the left, Sir A. G., and 
addressed him frequently, while our member of the Court seemed 
to make no attempt even to mingle in the conference. He com- 
plained that we did not address ourselves to him. We felt it to 
be true, for he was a great deal in a semi-somnolent state, and we 
thought that he would be likely to agree with us so far as he 
followed us. Incidental matters were sometimes settled by the 
president and Sir A. G., or rather, under Sir A. G., without his 
being looked to, — of course nothing of importance." 

Mr. Dana further says that Mr. X's general influence with 
M. Delfosse "was worse than nothing." It was on one of these 
dinners that the American member stumbled over Sir Alexander 
Gait's name, and called him "Sir Harker Dandy" and "Sir 
Harker Dardy." 

More than one eye-witness of the proceedings of the tribunal 
described the Commission as follows. M. Delfosse looked bored. 
Sir Alexander Gait, the English member, alert and attentive, 
the American member asleep. 

In a letter of November 30, 1877, to Mr. Evarts, Mr. Dana, 
speaking of the failure of any assistance to M. Delfosse from 
the American member, says as follows : ■ — 

"The day after my letter to you of the 25th inst., I had an 
interview with M. Delfosse. As all was over, he spoke freely 
and complained that they received no aid from the U. States 
member of the tribunal. He said that they had no word from 
him during the taking of the testimony, which he was disposed 
to ascribe to delicacy. After the evidence was in, he and Sir 
A. G. both wished a conference, and Sir A. G. had them both 
at dinner, and the subject was started, but with no results. Mr. 
X had nothing to say. At the final conference, when Sir A. G. 
was fully prepared with reasons, arguments, digested statistics, 
etc., Mr. X had no arguments or suggestions, or statistics, but 
only stood on his negative of all compensation." 



350 RICHARD HENRY DANA, JR. 

In addition to that, Mr. X's clothing was untidy, his general 
appearance slovenly, and he was careless and forgetful in his 
tobacco-chewing practices; while M. Delfosse was a European 
of immaculate dress and the neatest possible habits, and one who 
was apt to judge of people by their appearance in these respects. 

How such a man as Mr. X came to be appointed to such a 
position, Mr. Dana told me, was an instance of the favoritism 
of the "spoils system." Mr. X was a fellow townsman of United 
States Senator Dawes, who secured the appointment, and Mr. 
X "needed" the money comi3ensation. 

As to the award, Mr. Dana says: "For myself I do not think 
that the great body of testimony, brought forward on each side 
with so much labor and expense, has been the basis of the de- 
cision. I think the decision was diplomatic altogether, and based 
upon mental operations which could have been gone through 
with in substantially the same manner had there been nothing 
beyond the two cases filed." 

It seems to have been based on halving the revised British 
demand, with a penalty attached. The original British demand 
was for $14,800,000. This was reduced by the decision of the 
tribunal that some of the items going to make up the total, as 
stated in the official claim, related to matters not included within 
the treaty. Cutting these out, the claim may well have been 
reduced as Mr. Dana suggests, by "about one third," or to 
$10,000,000. At the final conference of the Commissioners, ac- 
cording to Mr. Dana's letter to Secretary of State, Mr. Evarts, 
November 25, 1877: — 

"M. Delfosse suggested as a compromise $4,500,000 [$500,000 
less than half of $10,000,000]. It seems that when the Commis- 
sioners came together to read the award to the agents and coun- 
sel, M. Delfosse was induced by Sir A. Gait, we do not know 
why or how, to add one million. I suppose it to have been on 
the suggestion that Mr. X's refusing to approach nearer to a 
compromise and raising the question of validity^ entitled the 
British side to the utmost." 

Mr. X took the position that no award was binding unless unani- 
mous. 



HALIFAX FISHERY COMMISSION 351 

In Mr. Dana's letter to Mr. Evarts, November 30, after M. 
Delfosse "spoke freely" of the award, he states: — 

"M. Delfosse further said that it was again and again ex- 
plained to Mr. X that his (M. Delfosse's) proposal for four and 
a half millions, to which Sir A. Gait assented, was conditional 
upon its being accepted by Mr. X and was to go for nothing 
otherwise. . . . This was to explain their apparent advance 
from $4,500,000 to $5,500,000." 

That is, the award was to be half a million less than half the 
British claim if the American commissioner assented, and half 
a million more than half if he did not. 

During the course of the hearings at Halifax, though not offi- 
cially argued by counsel for Great Britain, it was frequently 
stated in conversation and put before M. Delfosse that the award 
of the Geneva Arbitration for the Alabama Claims had been 
too large, and that it was no more than fair to offset this by a 
liberal award to England in the fishery case, which was a part 
of the same treaty. M. Delfosse, in conversation in Boston after 
the award, in trying to justify it, laughingly remarked that it was 
no more than fair, even if it were somewhat too large, as Great 
Britain had paid too much for the Alabama Claims. M. Del- 
fosse also expressed the general view that a small award would 
not be becoming to the dignity of an international tribunal in 
an important question between two great and wealthy countries. 

Finally, it has been stated that M. Delfosse was influenced 
by his desire to be appointed as minister from his own gov- 
ernment to Great Britain. Neither my father, nor any of those 
that I have seen connected with the case, have ever for a moment 
believed that M. Delfosse consciously gave in to that influence, 
though it was perfectly well known that he entertained that 
ambition; but with a man without judicial training, the indirect 
and unconscious influences may have told in the decision. 

It may be interesting to the reader to know what the results 
of so great an award have been. In the words of the Secretary 
of State, Mr. William M. Evarts: "The question between the 
two countries is of much more serious import than the . . . 
money payment involved. The subject of valuation will remain 



352 RICHARD HENRY DANA, JR. 

as an occasion of controversy after the brief treaty period cov- 
ered by the award has expired."^ 

As to the hope of the chief counsel for Great Britain that the 
award might be a "basis upon which future and more lasting 
negotiations may be entered into, and so a source of continued 
national and local irritation may be entirely removed," the joint 
arrangement of free trade in fish and free fishing within the 
three-mile limit was brought to an end by the United States 
at the first possible moment, namely, in 1883. The United 
States could not, of course, go on paying at such a rate. The 
Canadians are excluded from selling their fish in the United 
States, their chief market, and the old, irritating efforts at ex- 
clusion from the three-mile limit by the British and at avoiding 
this exclusion by the American fishermen continue to this day. 
To the more far-sighted of the English statesmen, the largeness 
of the award, while a temporary triumph, was in the end a mis- 
fortune. M. Delfosse was not made Minister to England. 

How, in the Treaty of 1818, we ever came to abandon the 
right of fishing within the three-mile limit, for which John 
Adams so earnestly and successfully contended in making the 
treaty of peace with Great Britain at the close of the Revolution- 
ary War; why the Treaty of 1818 was so carelessly worded in its 
application to the United States interests; and why we came to 
concede so much more than was fair in the Treaty of 1871, are 
questions worth asking, and Mr. Dana's answer may be worth 
knowing. He believed that these were mistakes, and that they 
arose because we did not have trained diplomats and permanent, 
high-grade secretaries in our State Department, while in the 
Foreign Ofiice and the diplomatic corps of Great Britain, they 
had able men, perhaps no more able than some of our negotia- 
tors, but long in the service, with practically permanent tenure, 
thoroughly familiar with the whole history of such matters, 
skilled in the use of diplomatic language and international law 
and able to take advantage of our want of knowledge. We suffer, 
equally, in all our various departments, as is now becoming 

^ Halifax Commission, vol. 10, page xiv. 



HALIFAX FISHERY COMMISSION 353 

more and more apparent, for lack of just such permanent, well- 
trained assistant secretaries. 

Of course, it may be said of the Treaty of 1818 that our mili- 
tary weakness was such that we could not get all we wanted; 
but it is doubtful if our representatives knew the value of what 
they were giving up and the strength of our original claims. The 
wording of this treaty has now brought us to the necessity of 
making the new, recent treaty of April 4, 1908, with Great Brit- 
ain, by which certain questions regarding the construction of the 
Treaty of 1818 have just been submitted to the Hague Tribunal. 
The more important questions were, whether the right of the in- 
habitants of the United States to take fish on the coasts of New- 
foundland, the Magdalen Islands and Labrador, from which we 
were not excluded by the Treaty of 1818, "in common with the 
subjects of" Great Britain, is subject to regulations as to catch- 
ing fish and as to port dues, made without the consent of the 
United States, by Great Britain, Canada and Newfoundland; ^ 
whether the inhabitants of the United States, while exercising 
these liberties, have a right to employ as members of their fish- 
ing crews persons not inhabitants of the United States;^ and 
finally, from where must we measure the "three marine miles 
ofiF any of the coasts, bays, creeks or harbors" on the prohibited 
coasts of the Canadian shores? Two of the arguments in favor 
of the United States contention were, — that in all the presenta- 
tions of the case at Halifax, the three-mile limit was assumed 
to be from the shores, or from lines of headlands that are not 
over six miles apart; and that the award was so large that the 
right to diminish the value of taking fish by regulation of sea- 
sons and methods could not have been taken into account, as 
in fact it was not urged in argument.^ 

^ The Hague Tribunal on Sept. 7, 1910, decided that no port dues 
but " reasonable regulations " could be imposed without the consent 
of the United ^^States, but their reasonableness, necessity and fairness 
should be submitted to a special expert commission. 

^ This right to employ persons not inhabitants of the United States 
is sanctioned by the Hague Tribunal. 

^ The decision on this is against the United States. The award 



354 RICHARD HENRY DANA, JR. 

In considering Mr. Dana's argument, it should be remembered 
that Judge Foster and Mr. Trescot had already argued for the 
United States, and Mr. Dana left to them certain topics on which 
he hardly touched at all.] 

Argument on Behalf of the United States 

May it ^please your Excellency and your Honors, — 
Your legislature of this Province has set apart for 
our use this beautiful hall; and while my friend and 
associate, Mr. Trescot, saw in the presence of the 
portrait of His Majesty George III, which looks down 
upon us from the walls, an encouragement for the 
settlement of the matter confided to us, because that 
king supposed it settled more than a hundred years 
ago, I confess that the presence of that figure has 
been to me throughout most interesting and even 
pathetic. It was the year he ascended the throne, 
that the French were finally driven from North Amer- 
ica, and that it all became British America, from the 
southern coast of Georgia up to the North Pole, and 
all these islands and peninsulas which form the Gulf 
of St. Lawrence passed under his sceptre. And what a 
spectacle for him to look down upon now, after a hun- 
dred years! A quiet assembly of gentlemen, without 
parade, without an armed soldier at the gate, settling 
the vexed question of the fisheries, which in former 
times and under other auspices would have been cause 
enough for war. And settling them between whom ? 
Between his old thirteen colonies — now become a 
republic of forty millions of people, bounded by seas 
and zones — and his own empire, its sceptre still held 

recommends definite lines based on certain enumerated coast points, 
which exclude us from certain large bays, though their entrances are 
more than six miles broad. 



HALIFAX FISHERY COMMISSION 355 

in his own line, by the daughter of his own son, more 
extended, and counting an immensely larger popula- 
tion than when he left it, showing us not only the mag- 
nitude and increase of the Republic, but the stability, 
the security, and the dignity of the British Crown. 

Yes, gentlemen of the Commission, when he as- 
cended the throne, and before that, when his grand- 
father, whose portrait also adorns these walls, sat 
upon the throne of England, this whole region was 
a field of contest between France and Great Britain. 
It was not then British North America. Which power 
should hold it, with these islands and peninsulas and 
these fisheries adjacent to and about it, depended 
upon the issue of war, and of wars one after another. 
But Great Britain, holding certain possessions here, 
claimed the fisheries, and made large claims, accord- 
ing to the spirit of that day, covering the Banks of 
Newfoundland, and the other banks, and the whole 
deep-sea fishery out of sight of land, and also up to 
the very shores, within hailing distance of them, 
without any regard to a geographical limit of three 
miles, which is a very modern invention. That con- 
test was waged, and the rights in these islands and 
these fisheries settled by the united arms of Great 
Britain and of New England, and largely, most 
largely, of Massachusetts. Why, Louisburg, on Cape 
Breton, held by the French, was supposed to be the 
most important and commanding station, and to 
have more influence than any other upon the des- 
tinies of this part of the country. Its reduction was 
ordered by the Legislature of Massachusetts. And, 
Mr. President, it was a force of between three and 
four thousand Massachusetts men, under Pepperell, 
and a few hundred from the other colonies, with one 



356 RICHARD HENRY DANA, JR. 

hundred vessels, that sailed to Louisburg, invested 
and took it for the British Crown, in trust for Great 
Britain and her colonies. Gridley, who laid out the 
fortifications at Bunker Hill, and Prescott, who de- 
fended them, were in the expedition against Louis- 
burg, and the artillery was commanded by Dwight, 
maternal ancestor of our friend, Judge Foster. And 
wherever there was war between France and England 
for the possession of this continent, or any part of 
it, or these islands and these fisheries, the militia and 
volunteers of Massachusetts fought side by side with 
the regulars of Great Britain. They fought under 
Wolfe at Quebec, under Amherst and Howe at Ticon- 
deroga; and, even at the confluence of the Alleghany 
and Monongahela, Washington saved the remnant 
* of Braddock's command. We followed the British 
arms wherever they sought the French arms. The 
soldiers of Massachusetts, accompanying the British 
regulars to the sickly sugar-islands of the West Indies, 
lay side by side on cots in the same fever-hospitals, 
and were buried in the same graves. And if any of 
you shall visit the Old Country again, and your foot- 
steps lead you to Westminster Abbey, you will find 
there a monument to Lord Howe, who fell at Ticon- 
deroga, erected in his honor by the Province of Massa- 
chusetts. And there let it stand! an emblem of the 
fraternity and unity of the olden times, and a proof 
that it was together, by joint arms and joint enter- 
prise, blood and treasure, that all these Provinces, 
and all the rights appertaining and connected there- 
with, were secured to the Crown and the Colonies! 

I may as well present here, gentlemen of the Com- 
mission, as at any other time, my view respecting 



HALIFAX FISHERY COMMISSION 357 

this subject of the right of deep-sea fishery. The right 
to fish in the sea is in its nature not real, as the com- 
mon law has it, nor immovable, as termed by the 
civil law, but personal. It is a liberty. It is a fran- 
chise, or a faculty. It is not property, pertaining to 
or connected with the land. It is incorporeal. It is 
aboriginal. ... I speak of the free-swimming fish of 
the ocean, followed by the fishermen through the deep 
sea; not of the crustaceous animals or any of those 
that connect themselves with the soil under the sea, 
or adjacent to the sea, nor do I speak of any fishing 
which requires possession of the land or any touching 
or troubling the bottom of the sea. I speak of the 
deep-sea fishermen who sail over the high seas, pur- 
suing the free-swimming fish of the high seas. Against 
them, it is a question not of admission, but of exclu- 
sion. These fish are not property. Nobody owns 
them. They . . . belong, by right of nature, to those 
who take them, and every man may take them who 
can. It is a totally distinct question whether, in taking 
them, he is trespassing upon private property, the 
land or park of any individual holder. . . . The fish- 
erman who drops his line into the sea creates a value 
for the use of mankind, and therefore his work is 
meritorious. It is, in the words of Burke, "wealth 
drawn from the sea"; but it is not wealth until it is 
drawn from the sea. 

I am willing to put at stake whatever little reputa- 
tion I may have for acquaintance with the jurispru- 
dence of nations (and the less reputation, the more 
important to me) to maintain this proposition, that 
the deep-sea fisherman, pursuing the free-swimming fish 
of the ocean with his nety or his leaded line, not touching 



358 RICHARD HENRY DANA, JR. 

shores or troubling the bottom of the sea, is no trespasser, 
though he approach within three miles of a coast, by 
any established, recognized law of all nations. . . . 
The Treaty between Great Britain and France of 
1839, which provides for a right of exclusive fishery 
by the British on the British side of the Channel, and 
by the Ifrench on the French side of the Channel, 

t 

each of three miles, and measures the bays by a ten- 
mile line, is entirely a matter of contract between 
the two nations. The Treaty begins by saying, not 
that each nation acknowledges in the other the right 
of exclusive fishery within three miles of the coast; 
nothing of the kind. It begins by saying, " It is agreed 
between the two nations that Great Britain shall have 
exclusive fishery within three miles of the British 
coast, and that the French shall have exclusive fishery 
within three miles of the French coast," and then it 
is further agreed that the bays shall be measured by 
a ten-mile line. All arbitrary alike, all resting on 
agreement alike, without one word which indicates 
that the law of nations any more gives an exclusive 
right to these fisheries for three miles from the coasts, 
than it does to measure the bays by ten miles. In 
the time of Queen Elizabeth this matter seemed to 
be pretty well understood in England. Her Majesty 
sent a commission, an embassy, to Denmark, on the 
subject of adjusting the relations between the two 
countries, and among the instructions given the am- 
bassadors were these : — 

"And you shall further declare that the Lawe of 
Nations alloweth of Fishing in the sea everywhere; 
as also of using ports and coasts of princes in amitie 
for traffique and avoidinge danger of tempests; so 
that if our men be barred thereof, it should be by some 



HALIFAX FISHERY COMMISSION 359 

contract. We acknowledge none of that nature; but 
rather, of conformity with the Lawe of Nations in 
these respects, as declaring the same for the removing 
of all clayme and doubt; so that it is manifest, by 
denying of this Fishing, and much more, for spoyling 
our subjects for this respect, we have beej|Muajured 
against the Lawe of Nations, expresslie de^^Jd by 
contract as in the aforesaid Treaties, and the King's 
own letters of '85." 



Though possession of the land close to tne sea, says 
this remarkable letter of instructions, "may yield 
some oversight and jurisdiction, yet use not princes 
to forbid passage or fishing, as is seen by our law of 
England." There is much more to the same effect. 
So that whatever claim of jurisdiction over the sea a 
neighboring nation might make, whatever claim to 
property in the soil under the sea she might make, 
it was not the usage of princes to forbid passage, 
innocent passage, or the fishing and catching of the 
free-swimming fish, wherever they might be upon the 
high seas. 

I wish particularly to impress upon your Honors, 
that all the North British Colonies were in possession 
and enjoyment of the liberty of fishing over all the 
north-western Atlantic, its gulfs and bays. There is 
no word indicating the existence of either a three- 
mile line of exclusion, or of an attaching the right of 
fishing to the geographical position of the colony. 
No, gentlemen, the Massachusetts fisherman who 
dropped his leaded line by the side of the steep coast 
of Labrador, or within hail of the shore of the Mag- 
dalen Islands, did it by precisely the same right that 
he fished in Massachusetts Bay, off Cape Cod or 



360 RICHARD HENRY DANA, JR. 

Cape Ann. Nobody knew any difference in the 
foundation or the test of such rights, in those days. 
It was a common heritage, not dependent upon 
poHtical geography. As I have said, it was con- 
quered by the common toil, blood and treasure, and 
held a^^ common right and possession. 



c 



At The close of the [Revolutionary] war, the Treaty 
of 1783 was made. Now, at the time when the Treaty 
of 1783 was made. Great Britain did not claim to have 
conquered America, or to have taken from us by mili- 
tary force any of our rights ; and the consequence was 
that in framing the Treaty of 1783, while we altered 
by common consent some of the boundary lines, none 
by right of conquest, it was declared that the people 
of the United States shall "continue to enjoy un- 
molested the right to take fish of every kind on the 
British banks, and all other banks of Newfoundland; 
also in the Gulf of St. Lawrence, and all other places 
in the sea where the inhabitants of both countries 
used at any time heretofore to fish." What could be 
stronger than that.^ It was an acknowledgment of a 
continued right possessed long before. And if any 
question of its construction arose, it appealed to what 
they had been heretofore accustomed to do; "where 
the inhabitants of both countries used at any time 
heretofore to fish." 

How was it construed by British statesmen .^^ Is 
there any doubt about it? I take it my brethren of 
the Dominion bar will consider Lord Loughborough 
good authority. He said these words in the House 
of Lords respecting the fishery clause of the Treaty: 
" The fisheries were not conceded, but recognized as a 
right inherent in the Americans, which, though no longer 



HALIFAX FISHERY COMMISSION 361 

British subjects^ they are to continue to enjoy unmo- 
lested.'^ The same thing, substantially, was said by 
Lord North, who had been, we are told now by his 
biographers, the unwilling, but certainly the sub- 
servient instrument, in the hands of his king, for try- 
ing to deprive us of this, as well as our ot^^ights. 
We then did continue to enjoy them, as we^^Jfrom 
1620 down. We had as much right to them as the 
British Crown, because it was our bow and our spear 
that helped to conquer them. Then came the war of 
1812; and we had enjoyed the fisheries freely, without 
geographical limit, down to that time. The war of 
1812 certainly did not result in the conquest of Amer- 
ica, either maritime or upon the land. It was fought 
out in a manly way between two strong people, with- 
out any very decided result; but after the war, in 
1814, . . . the parties could not agree [as to the fish- 
eries], and it went on in that way until 1818; and 
then came a compromise, and nothing but a com- 
promise. The introduction to the Treaty of 1818 says: 
"Whereas differences have arisen respecting the lib- 
erty claimed by the United States and inhabitants 
thereof to take, dry and cure fish in certain coasts, 
harbors, creeks and bays of His Majesty's dominions 
in America, it is agreed between the high contracting 
parties." It is all based upon "differences," and all 
"agreed." 

But England was a powerful nation. She fought 
us in 1812 and 1814 with one hand, — I acknowledge 
it, though it may be against the pride of American 
citizens, — while she was fighting nearly all Europe 
with the other; but she was now at peace. Both 
nations felt strong; both nations were taking breath 



362 RICHARD HENRY DANA, JR. 

after a hard conflict, and it was determined that 
there should be an adjustment; and there was an 
adjustment, and it was this. Great Britain tacitly 
waived all claim to exclude us from any part of the 
high seas. She expressly waived all right to exclude 
us fro^^he coasts of Labrador, from Mount Joly, 
northj^^o and eastward indefinitely, through those 
tumbling mountains of ice, where we formerly "pur- 
sued our gigantic game." She expressly withheld all 
claim to exclude us from the Magdalen Islands, and 
from the southern, western, and northern shores of 
Newfoundland; and, as to all the rest of the Bay of 
St. Lawrence and the coasts of Nova Scotia and New 
Brunswick, we agreed to submit to her claim to ex- 
clude us. So that it stood thus: that, under that 
Treaty, and only under that Treaty, we admitted 
that Great Britain might exclude us, for a distance 
of three miles, from fishing in all the rest of her pos- 
sessions in British North America, except those where 
it was expressly stipulated she should not attempt 
to do it. So she had a right to exclude us for a dis- 
tance of three miles from the shores of Cape Breton, 
Prince Edward Island, Nova Scotia, a portion of New- 
foundland, and New Brunswick, and what has now 
become the Province of Quebec, while she could not 
exclude us from the coast of Labrador, the Magdalen 
Islands, and the rest of Newfoundland. There was 
the compromise. We got all that was then thought 
useful, in the times of cod-fishing, with the right to 
dry nets and cure fish wherever private property was 
not involved. The Treaty of 1818 lasted until 1854, 
— thirty-six years. So we went on under that com- 
promise, with a portion of our ancient rights secured 
and another portion suspended, and nothing more. 



HALIFAX FISHERY COMMISSION 363 

Great changes took place in that period. The mack- 
erel fishery rose into importance. Your Honors have 
had before you the interesting spectacle of an old man 
who thinks that he was the first who went from Mas- 
sachusetts into this Gulf and fished for mackerel, in 
1827, or thereabouts. He probably was. But mack- 
erel-fishing did not become a trade or busin'l|s until 
considerably after 1830, when the catch of mackerel 
became important to us as well as to the Provinces. 

But there were great difficulties attending the exer- 
cise of this claim of exclusion — very great difficul- 
ties. There always have been, there always must be, 
and I pray there always shall be such, until there be 
free fishing as well as free trade in fish. They put 
upon the stand Capt. Hardinge, of Her Majesty's 
navy, now or formerly, who had taken an active part 
in superintending these fisheries and driving off the 
Americans. We asked him whether the maintenance 
of this marine police was not expensive. He said 
that it was expensive in the extreme, that it cost 
£100,000 — I believe that was the sum named. He 
did not know the exact amount, but his language was 
quite strong as to the expensiveness of excluding the 
Americans from these grounds, of maintaining these 
cruisers. But it also brought about difficulties be- 
tween Great Britain and her Provinces. The Pro- 
vincial authorities, on the 12th of April, 1866, after 
this time (but they acted throughout with the same 
purpose and the same spirit), undertook to say that 
every bay should be a British private bay which was 
not more than ten miles in width; following no pre- 
tence of international law, but the special treaty 
between Great Britain and France; and afterwards 
they gave out licenses for a nominal sum, as they 



364 RICHARD HENRY DANA, JR. 

said, for the purpose of obtaining a recognition of 
their right. They did not care, they said then, how 
much the Americans fished within the three miles, 
but they wished them to pay a "nominal sum for a 
license," as a recognition of the right. Well, the 
"nominal sum" was fifty cents a ton; but by and by 
the Copnial Parliament thought that nothing would 
be a "nominal sum" unless it was a dollar a ton, and 
at last they considered that the best possible "nomi- 
nal sum" was two dollars a ton. 

But Her Majesty's government took a very differ- 
ent view of that subject, and wherever there has been 
an attempt to exclude American fishermen from the 
three-mile line, there has been a burden of expense 
on Great Britain, a conflict between the Colonial 
Department at London and the Provincial authori- 
ties here, — Great Britain always taking the side of 
moderation, and the Provincial Parliaments the side 
of extreme claim and untiring persecution. Then 
there was a difiiculty in settling the three-mile line. 
What is three miles? It cannot be measured out, as 
upon the land. It is not staked out or buoyed out. 
It depends upon the eye-sight and judgment of inter- 
ested men, acting under every possible disadvantage. 
A few of the earlier witnesses called by my learned 
friends for the Crown undertook to say that there was 
no difiiculty in ascertaining the three-mile line; but 
I happened to know better, and we called other wit- 
nesses, and at last nobody pretended that there was 
not great difficulty. Why, for a person upon a vessel 
at sea to determine the distance from shore, every- 
thing depends upon the height of the land he is look- 
ing at. If it is very high, it will seem very much nearer 
than if it is low and sandy. The state of the atmos- 



HALIFAX FISHERY COMMISSION 365 

phere affects it extremely. A mountain side on the 
shore may appear so near in the forenoon that you 
feel as if you can almost touch it with your fingers' 
ends, while in the afternoon it is remote and shadowy, 
too far altogether for an expedition with an ordinary 
day's walk to reach it. Now, every honest mariner 
must admit that there is great difficulty in determin- 
ing whether a vessel is or is not within three miles 
of the shore, when she is fishing. But there is, further, 
another difficulty. "Three miles from the shore," — 
what shore? When the shore is a straight or curved 
line, it is not difficult to measure it; but the moment 
you come to bays, gulfs, and harbors, then what is 
the shore .f^ The headland question then arose, and 
the Provincial officials told us, — the Provinces by 
their acts, and the proper officers by their proclama- 
tions, and the officers of their cutters, steam or sail, 
— told our fishermen upon their quarter-decks, that 
"the shore" meant a line drawn from headland to 
headland, and they undertook to draw a line from the 
North Cape to the East Cape of Prince Edward 
Island, and to say that "the shore" meant that line; 
and then they fenced off the Straits of Northumber- 
land; they drew another line from St. George's to 
the Island of Cape Breton; they drew their headland 
lines wherever fancy or interest led them. And not 
only is it true that they drew them at pleasure, but 
they made a most extreme use of that power. We 
did not suffer so much from the regular navy, but the 
Provincial officers, wearing for the first time in their 
lives shoulder-straps and put in command of a vessel, 
"dressed in a little brief authority, played such fan- 
tastic tricks before high heaven" as might at any 
moment, but that it was averted by good fortune. 



366 RICHARD HENRY DANA, JR. 

have plunged the two countries into war. Why, that 
conflict between Patillo and Bigelow amused us at 
the time; but I think your Honors were shocked when 
you thought that, as Patillo escaped, was pursued, 
and the shots fired by his pursuers passed through his 
sail, and tore away part of his mast and entered the 
hull, if they had shed a drop of American blood, it 
might the "multitudinous seas incarnadine" in war. 
Why, people do not go to war solely for interest, but 
for honor, and every one felt relieved, drew a freer 
breath, when he learned that no such fatal result 
followed. None of us would like to take the risk of 
having an American vessel beyond the three miles, but 
supposed to be within it, or actually within it for 
an innocent purpose, attacked by a British cutter, 
or attacked because she was within three miles from 
a headland line, and blood shed in the encounter. 
Now, Great Britain felt that, and felt it more than 
the Provinces did, because she had not the same money 
interest to blind her to the greatness of the peril. 

Nor is that all, by any means. There was a further 
difficulty. No one could know what would become 
of us when we got into court. There was a conflict 
of legal decisions. One vessel might go free, when 
under the same circumstances another vessel might 
be condemned. The Treaty of 1818 did not allow us 
to go within three miles of certain shores, except for 
the purposes of shelter, and getting wood or supplies, 
and prohibited fishing within the three miles. The 
act of the 59th of George III was the act intended to 
execute that treaty. That act provided, that, "if 
any such foreign vessel is found fishing, or preparing 
to fish, or to have been fishing, in British waters. 



HALIFAX FISHERY COMMISSION 367 

within three miles of the coast, such vessel, her tackle, 
etc., and cargo shall be forfeited." That was the 
language of the Statute of George III, and of the Do- 
minion statutes. Is it not plain enough, — it seems 
to me, it has seemed so to all Americans, I think, — 
that that statute was aimed, as the treaty was, against 
fishing within three miles .^^ But in one court the 
learned judge who presides over it — a man of learn- 
ing and ability, recognized in America and in the 
Provinces, therefore giving his decision the greater 
weight — decided two points against us. We had sup- 
posed that the statute meant "for fishing within 
three miles you will be condemned," and in order 
that it should not be required that a man should be 
caught in the very act of drawing up fish (which would 
be almost impossible), it was explained by saying, 
"or caught having fished or preparing to fish" — 
meaning such acts as heaving his vessel to, preparing 
his lines, throwing them out, and the like. The 
learned court decided, first, that buying bait, and 
buying it on shore, was "preparing to fish," within 
the meaning of the statute. If an American skipper 
went into a shop, leaned over the counter, and bar- 
gained with a man who had bait to sell on shore, he 
was "preparing to fish," and, as he certainly was 
within three miles of the shore, his preparation was 
made within three miles; and the judge treated it as 
immaterial whether he intended to violate the pro- 
vision of the treaty by fishing within three miles of 
the shore, so long as he was preparing, within three 
miles, to fish anywhere in the deep sea, on the Banks 
of Newfoundland, or in American waters. Then came 
the decision of the learned judge of New Brunswick 
(they were both in 1871), who said that buying bait 



368 RICHARD HENRY DANA, JR. 

was not the "preparing to fish" at which the statute 
was aimed ; and further, that it was essential to prove 
that the fishing intended was to be within three miles 
of the shore. There was a conflict of decisions, and 
we did not know where we stood. 

Another effect of this restriction was, that it 
brought down upon the Dominion fishermen the 
statute of the United States, laying a duty of two 
dollars a barrel upon every barrel of mackerel, and 
one dollar a barrel upon every barrel of herring. That 
statute was, — and I shall presently have the honor 
to cite the evidence upon that point, that I may not 
be supposed to rely upon assertion, — that statute 
was, in substance, prohibitory. The result was, that 
it killed all the vessel-fishing of these Provinces. They 
had no longer seamen who went to sea in ships. A 
shore-fishery sprung up for the use of the people 
themselves, and was gradually somewhat extended 

— I mean, a boat-fishery around the shores. But, 
as I shall cite authorities to show, as I hope that your 
Honors already believe, that the first effect was to 
draw away from these Provinces the enterprising and 
skilled fishermen who had fished in their vessels and 
sent their catches to the American market. It drew 
them away to the American vessels, where they were 
able, as members of American crews, to take their 
fish into market free of duty. 

There was, at the same time, a desire growing on 
both sides for reciprocity of trade; and it became 
apparent that there could be no peace between these 
countries until this attempt at exclusion by imaginary 
lines, always to be matters of dispute, was given up, 

— until we came back to our ancient rights and posi- 
tion. It was more expensive to Great Britain than 



HALIFAX FISHERY COMMISSION 369 

to us. It made more disturbance in the relations 
between Great Britain and her provinces than it did 
between Great Britain and ourselves; but it put every 
man's life in peril; it put the results of every man's 
labor in peril; and for what? For the imaginary right 
to exclude a deep-sea fisherman from dropping his 
hook or his net into the water for the free-swimming 
fish, that have no habitat, that are the property of 
nobody, but are created to be caught by fishermen, 
prcedce humani generis. So at last it was determined 
to provide a treaty by which all this matter should 
be set aside, and we should fall back upon our own 
early condition. 

Upon the question, "How is the three-mile line 
to be determined?" we find everything utterly afloat 
and undecided. My purpose in making these remarks 
is, in part, to show your Honors what a precarious 
position a State holds which undertakes to set up 
this right of exclusion, and to put it in execution. 
The international law makes no attempt to define 
what is "coast." We know well enough what a 
straight coast is and what a curved coast is, but the 
moment the jurists come to bays, harbors, gulfs and 
seas, they are utterly afloat, — as much so as the sea- 
weed that is swimming up and down the channels. 
They make no attempt to define it, either by distance 
or by political or natural geography. They say at 
once: "It is difficult, where there are seas and bays." 
Names will not help us. The Bay of Bengal is not 
national property, it is not the king's chamber; nor 
is the Bay of Biscay, nor the Gulf of St. Lawrence, 
nor the Gulf of Mexico. An inlet of the sea may be 
called a "bay," and it may be two miles wide at its 



370 RICHARD HENRY DANA, JR. 

entrance; or it may be called a "bay," and it may 
take a month's passage in an old-fashioned sailing 
vessel to sail from one headland to the other. What 
is to be done about it? If there is to be a three-mile 
line from the coast, the natural result is, that that 
three-mile line should follow the bays. The result 
then would be, that a bay more than six miles wide 
was an international bay, while one six miles wide, 
or less, would be a territorial bay. That is the natural 
result. Well, nations do not seem to have been con- 
tented with this. France has made a treaty with 
England, saying that, as between them, anything less 
than ten miles wide shall be a territorial bay. 

The difficulties on that subject are inherent, and, 
to my mind, they are insuperable. England claimed 
to exclude us from fishing in the Bay of Fundy; and 
it was left to referees, of whom Mr. Joshua Bates was 
umpire, and they decided that the Bay of Fundy was 
not a territorial bay of Great Britain, but a part of 
the high seas. This decision was put partly upon its 
width, but the real ground was, that one of the as- 
sumed headlands belonged to the United States, and 
it was necessary to pass the headland in order to get 
to one of the ports of the United States. For these 
special reasons, the Bay of Fundy, whatever its 
width, was held to be a public and international 
bay. 

[In the case of Queen v. Cunningham, Bell's Cr. 
Cas. p. 72, it was held that Great Britain had crimi- 
nal jurisdiction over a vessel ninety miles from the 
mouth of the Bristol Channel, though over three 
miles from any land; while in the Franconia case, 
2 Ex. D. 159, it was held that there was no such juris- 



HALIFAX FISHERY COMMISSION 371 

diction within three miles of the shore on the side of 
the more open English Channel.] 

This naturally leads to the question: "Does fishing 
go with the three-mile line?" I have had the honor 
to say to this tribunal, that there is no decision to 
that effect, though I admit that there is a great deal 
of loose language in that direction. I do not raise any 
question respecting those fish that adhere to the soil, 
or to the ground under the sea. But on what does 
that three-mile jurisdiction rest, and what is the 
nature of it.^^ I suppose we can go no further than this 
— that it rests upon the necessities of the bordering 
nation, — the necessity of preserving its own peace 
and safety, and of executing its own laws. I do not 
think that there is any other test. Then the question 
may arise, and does, whether, in the absence of any 
attempt by statute or treaty to prohibit a foreign 
fisherman from following with the line or the seine 
or net, the free-swimming fish within that belt, his 
doing so makes him a trespasser by any established 
law of nations .^^ I am confident it does not. That, may 
it please the tribunal, is the nature of this three-mile 
exclusion, for the relinquishment of which Great 
Britain asks us to make pecuniary compensation. 
It is one of some importance to her, a cause of con- 
stant trouble, and, as I shall show you, — as has been 
shown you already by my predecessors, — of very 
little pecuniary value to England, in sharing it with 
us, or to us in obtaining our share, but a very danger- 
ous instrument for two nations to play with. 

I would say one word here about the decision in the 
Privy Council in 1877, respecting the territorial 
rights in Conception Bay. I have read it over; and 
though I have very great respect for the common-law 



372 RICHARD HENRY DANA, JR. 

lawyer, Mr. Justice Blackburn, who was called upon 
to pronounce upon a question entirely novel to him, 
I believe that if your Honors think it at all worth 
while to look over this opinion, in which he under- 
takes to say that Conception Bay is an interior bay 
of Newfoundland, and not public waters, although 
it is some fifteen or more miles wide, you will find that 
he makes the statement, which is true, that an Act 
of Parliament is binding upon him, whether the act 
be in conformity with international law or not. But 
the act is not binding upon you, nor is the decision. 
But there is nothing in the Act of Parliament which 
speaks upon that subject. It is the Act 59 George 
III, intended to carry out the Treaty of 1818, and for 
punishing persons who are fishing within the bays; 
and he infers from that, by one single jump, without 
any authority whatever of judicial decision or legis- 
lative language, that it must have meant to include 
such bays as the bay in question. {Direct U. S. Cable 
Co. V. Anglo- American Telegraph Co., English Law 
Reports, Appeal Cases, Part 2, p. 394.) 

This state of things lasted until the Treaty of 1854, 
commonly called the Reciprocity Treaty. The great 
feature of that treaty, the only one we care about 
now, is, that it put us back into our original condi- 
tion. It left us in possession of our general right. It 
made no attempt to exclude us from fishing any- 
where within the Gulf of St. Lawrence, and it allowed 
no geographical limits. And from 1854 to 1866 we 
continued to enjoy and to use the free fishery, as we 
had enjoyed and used it from 1620 down to 1818. 

But the Treaty of 1854 was terminated, as its 
provisions permitted, by notice from the United 
States. And why? Great Britain had obtained from 



HALIFAX FISHERY COMMISSION 373 

us a general free trade. Large parts of the United 
States thought that free trade pressed hardly upon 
them. I have no doubt it was a selfish consideration. 
I think almost every witness who appeared upon the 
stand at last had the truthfulness to admit, that when 
he sustained either duties or exclusion, it was upon 
the selfish motive of pecuniary benefits to himself, 
his section, his state, or his country; and if that were 
the greatest offence that nations or individual poli- 
ticians committed, I think we might well feel our- 
selves safe. We had received, in return for this 
advantage, a concession from Great Britain of our 
general right to fish, as we always had fished, without 
geographical exclusion. My learned friend, Judge 
Foster, read to you (which I had not seen before, and 
which was very striking) the confidential report of 
Consul Sherman, of Prince Edward Island, in 1864. 
I dare say my learned friend, the counsel from that 
Island, knows him. Now, that is a report of great 
value, because it was written while the Treaty was 
in existence, and before notice had been given by our 
government of the intention to repeal it. It was his 
confidential advice to his own country as to whether 
our interests, as he had observed them, were pro- 
moted by it; and he said, if the Reciprocity Treaty 
was considered as a boon to the United States, by 
securing to us the right to inshore fishing, it had con- 
spicuously failed, and our hopes had not been real- 
ized. I think these are his very words. He spoke 
with the greatest strength to his country, writing 
from Prince Edward Island, which claims to furnish 
the most important inshore fishery of any, and de- 
clared that, so far as the United States was concerned, 
the benefit that came from that was illusory, and it 



374 RICHARD HENRY DANA, JR. 

was not worth while for us any longer to pay any- 
thing for it. And that, as your Honors have seen, and 
as I shall have the pleasure to present still further 
by-and-by, was borne out by the general state of 
feeling in America. The result was, that in 1866 the 
Reciprocity Treaty was repealed. That repeal re- 
vived, as my country admitted, the Treaty of 1818; 
and we again laid, of course, the duties on the British 
importation of mackerel and herring. We were 
remitted to the antiquated and most undesirable 
position of exclusion; but we remained in that posi- 
tion only five years, from 1866 until 1871, until a 
new treaty could be made, and a little while longer, 
until it could be put into operation. What was the 
result of returning to the old system of exclusion? 
Why, at once the cutters and the ships of war, that 
were watching these coasts, spread their sails; they 
stole out of the harbors where they had been lurking; 
they banked their fires; they lay in wait for the 
American vessels, and they pursued them from head- 
land to headland, and from bay to bay; sometimes a 
British ofiicer on the quarter-deck, — and then we 
were comparatively safe, — but sometimes a new- 
fledged Provincial, a temporary ofiicer, and then we 
were anything but safe. . . . Not only did it revive 
the expensive and annoying and irritating and danger- 
ous system of revenue-cutters, and marine police, up 
and down the coast, telegraphing and writing to one 
another, and burdening the Provinces with the ex- 
pense of their most respectable and necessary main- 
tenance; but it revived, also, the collisions between 
the Provinces and the Crown; and when the Pro- 
vincial governments undertook to lay down a ten-mile 
line, and say to the cutters, "Seize any American 



HALIFAX FISHERY COMMISSION 375 

vessel found within three miles of a line drawn from 
headland to headland, ten miles apart," such alarm 
did it cause in Great Britain, that the Secretary of 
State did not write, but telegraphed instantly to the 
Provinces, that no such thing could be permitted, and 
that they could carry it no further than the six-mile 
rule. Then attempts were made to sell licenses. Great 
Britain said: "Do not annoy these Americans; we 
are doing a very disagreeable thing; we are trying to 
exclude them from an uncertain three-mile line; we 
would rather give up all the fish in the ocean than to 
have anything to do with it; but you insist upon it; 
do not annoy those Americans ; give them a license, — 
just for a nominal fee." So they charged a nominal 
fee, as I have said, of fifty cents a ton, which was 
afterwards raised — they know why, we do not — to 
a dollar. We paid the fifty-cent fee, and some Ameri- 
cans paid the dollar fee, — and why.^ They have told 
you why. Not because they thought the right to fish 
within three miles was worth that sum, but it was 
worth that sum to escape the dangers and annoyances 
which beset them, whether they were innocent or 
guilty under the law. Then at last the Provinces . . . 
raised it to an impossible sum, — two dollars a ton; 
and we would not pay it. What led them to raise it.^ 
What motive could there have been? They lost by it. 
Our vessels did not pay it. Why, this was the result, 
— I do not say it was the motive, — that it left our 
fishermen unprotected, and brought out their cutters 
and cruisers, and that whole tribe of harpies that line 
the coast, like so many wreckmen, ready to seize upon 
any vessel and take it into port and divide the plunder. 
It left us a prey to them, and unprotected. It also 
revived the duties, for we, of course, restored the 



376 RICHARD HENRY DANA, JR. 

duty of two dollars a barrel on the mackerel, and one 
dollar a barrel on the herring. It caused their best 
fishermen to return into the employment of the 
United States, and their boat -fishing fell off. That 
has been stated to your Honors before, but it cannot 
be too constantly borne in mind. 

But we went on as well as we could in that state of 
things, until Great Britain, desirous of relieving her- 
self from that burden, and the United States desiring 
to be released from those perils, and having also 
another great question unsettled, that is, the conse- 
quences of the captures by the Alabama, the two 
countries met together with Commissioners, at 
Washington, in 1871, and then made a great treaty 
of peace. I call it a "treaty of peace," because it was 
a treaty which precluded war, not restored peace 
after war, but prevented war, upon terms most hon- 
orable to both parties; and as one portion of that 
treaty — one that, though not the most important 
by any means, nor filling so large a place in the public 
eye as did the Congress at Geneva, yet fills an im- 
portant place in history, and in its consequences to 
the people of both countries — was the determination 
of this vexed and perpetual question of the rights of 
fishing in the bays of the north-western Atlantic; and 
by that treaty, we went back again to the old condi- 
tion in which we had been from 1620 down, with the 
exception of the period between 1818 and 1854, and 
the period between 1866 and 1871. That restored 
both sides to the only condition in which there can 
be peace and security; peace of mind, at least, free- 
dom from apprehension, between the two govern- 
ments. And when those terms were made, which were 



HALIFAX FISHERY COMMISSION 377 

terms of peace, of good-will to men, of security for the 
future, and of permanent basis always, and we agreed 
to free trade mutually in fish and fish-oil, and free 
rights of fishing, as theretofore almost always held, 
Great Britain said, "Very well; but there should be 
paid to us a money compensation." The United 
States asked none; perhaps it did not think it a fitting 
thing to do. Great Britain said, "This is all very 
well; but there should be a compensation in money, 
because we are informed by the Provinces" — I do 
not believe that Great Britain cared anything about 
it herself — "that it is of more pecuniary value to 
the Americans to have their right of fishing extended 
over that region from which they have been lately 
excluded, than it is to us to have secured to us free 
right to sell all over the United States the catchings 
of Her Majesty's subjects, free from any duty that 
the Americans might possibly put upon us." — 
"Very well," said the United States; "if that is your 
view of it, if you really think you ought to have a 
money compensation, we will agree to submit it to 
a tribunal." And to this tribunal it is submitted. 
First, under Article XVIII of the Treaty of 1871: 
what is the money value of what the United States 
obtains under that article. ^^ Next, what is the money 
value of what Great Britain obtains under Articles 
XXI and XIX? Second, Is what the United States 
obtains under Article XVIII of more pecuniary value 
than what Great Britain obtains under her two arti- 
cles? Because I put out of sight our right to send to 
this market, and the right of the people of the Pro- 
vinces to fish off our coasts, as I do not think 
either of them to be of much consequence. If you 
shall be of opinion, that there is no difference of 



378 RICHARD HENRY DANA, JR. 

value, — and of course that means no substantial 
difference in value, or that the advantage is with 
Great Britain, — then your deliberations are at an 
end; but if you shall think there is a substantial 
difference in value in favor of the United States, then 
your deliberations must go further, and you must 
decide what is that value, in money. 

I hope, if your Honors are not already persuaded, 
that you will be before the close of the argument on 
the part of the United States, and may not be driven 
from that persuasion by anything that may occur 
on the other side, that the United States were quite 
honest when they made the statement, in 1871, that 
in asking for the abandonment of the restrictive sys- 
tem in regard to the fisheries, they did not do it so 
much because of the commercial or intrinsic value 
of the fishing within the three-mile line, as for the 
purpose of removing a cause of irritation ; and I hope 
that the members of this tribunal have already felt 
that Great Britain, in maintaining that exclusive 
system, was doing injustice to herself, causing herself 
expense, loss, and peril; that she was causing irrita- 
tion and danger to the United States; that it was 
maintained from a mistaken notion, though a natural 
one, among the Provinces themselves, and to please 
the people of the Dominion and of Newfoundland; 
and that the great value of the removal of the restric- 
tion is, that it restores peace, amity, good-will; that 
it extends the fishing, so that no further question 
shall arise in courts or out of courts, on quarter-decks 
or elsewhere, whatever may be the pecuniary value 
of the mere right of fishing by itself; and that it would 
be far better if the Treaty of Washington had ended 
with the signing of the stipulations, except so far as 



HALIFAX FISHERY COMMISSION 379 

the Geneva Arbitration was concerned, and this 
question had not been made a matter of pecuniary 
controversy; that either a sum of money had been 
accepted at the time for a perpetual right, as was 
offered, or that some arrangement had been made 
between the two countries by which there should 
be the mutual right of free trade in timber, in 
coal, and in fish, or something permanent in its char- 
acter. 

But that is a bygone, and we are to meet the ques- 
tion as it comes now directly before us. Now, first, 
with your Honors' leave, I will take up the con- 
sideration of the money value of the removal of this 
geographical restriction, for that is what it is. The 
ancient freedom is restored ; the recent and occasional 
restriction as to three miles is removed, and the 
colonists say that that has been of pecuniary value 
to us. Whether it is a loss to them or not is utterly 
immaterial, in this consideration. They cannot ask 
you to give them damages for any loss to them. It 
is only the value to us. It is like a person buying an 
article in a shop, and a third person appointed to 
determine what is the value of that article to the 
purchaser. It is quite immaterial how great a mis- 
take the man may have made in selling it to him, or 
what damage the want of it may have brought upon 
his family or himself. If I have bought an umbrella 
across the counter, and we leave it to a third man to 
determine the value of the umbrella to me, it is 
totally immaterial whether the man has sold the only 
one he had, and his family have suffered for the want 
of it. That is a homely illustration, but it is perfectly 
apt. The question is. What is the value to the citi- 
zens of the United States, in money, of the removal 



380 RICHARD HENRY DANA, JR. 

of this geographic restriction? Not what damage this 
may have been to the Provinces, by reason of the 
Treaty which Her Majesty's Government saw fit to 
make with us. What, then, is the money vahie of the 
removal of the restriction? 

I will now take up for a moment the question of 
the cod-fisheries. In the first place, as to the cod- 
fiskery, it is a deep-sea or off-shore fishery, not a 
fishery within three miles. I do not mean to say that 
stray cod may not be caught occasionally within that 
limit; but as a business, it is a deep-sea business. 
With your Honors' permission, I will read some of 
the evidence on that point. 

These are only passages selected from a large mass 
of testimony, but they were selected because the per- 
sons who testified in that way were either called by 
the British side, or were persons of so much experi- 
ence that they are fair specimens of our view of the 
subject. 

Now, cod fishery is the great trade and staple of 
the United States, and is growing more and more so. 
The small cod that were once thrown overboard are 
now kept. The oil is used a great deal, codfish oil; 
and there are manufacturing establishments in 
Maine, Connecticut, and Massachusetts, which, 
we have been told by the witnesses, work up a great 
deal of this material that used to be thrown over- 
board; they draw oil from it, and the rest is used for 
fertilizing the land, and that is a gradually increasing 
business. One of the witnesses, I recollect, from 
Gloucester, told us how greatly the trade in codfish 
had improved, so that now, instead of sending it out 
as whole fish, it is cut in strips, rolled together, and 



HALIFAX FISHERY COMMISSION 381 

put into cans, and sold in small or large quantities 
to suit purchasers, and in that very easy manner 
sent all over the United States. 

The cod-fishery is also one as to which there is no 
fear of diminution, — certainly none of its extermi- 
nation. Professor Baird told us, on page 456 of the 
American evidence, that a single cod produces from 
three to seven million eggs, each one capable of 
forming another living animal in the place of its 
mother. He said that owing to the winds and storms 
to which they were exposed, and to their being 
devoured by other fish which sought for them, the 
best information was that about a hundred thousand 
of these eggs prosper so as to turn into living fish, 
capable of taking care of themselves, the undefended 
and unrestricted navigators of the ocean. Although 
that is not a large percentage of the amount of ova, 
yet an annual increase of a hundred thousand for 
every one shows that there is no danger of the dimi- 
nution, certainly none of the extermination, of that 
class of fish. It is enormous in quantity, something 
which the whole world combining to exterminate 
could hardly make any impression upon; and when 
the argument is made here that we ought to pay more 
for the right to fish because we are in danger of exter- 
minating what codfish we have, — if that argument 
is made, — it amounts to nothing. But if the further 
argument is made, that we have no cod-fishery to 
depend upon, then we have the statistics, and we have 
information from witnesses from all parts, that the 
cod-fishery shows no signs of diminution, and that 
it is as large and extensive and as prosperous as ever. 
Gloucester has gone more into the business than it 
ever has before; and I do not recollect that there is 



382 RICHARD HENRY DANA, JR. 

any evidence of the least value showing that that 
fishery is likely to fall off materially as a commercial 
product in our hands. There is a single British con- 
currence out of several others, I think, in this state- 
ment, which I will read. [Statement is to the effect that 
the cod-fishery is not precarious and the fishermen 
make a good living out of it.] I read that, because it 
is the testimony of an intelligent British witness, who 
represents one of those great Jersey firms that deal in 
codfish on the west coast of the gulf. 

The bait of the codfish need not be caught within the 
three-mile line. That, I think, we have pretty well 
established. We may buy it when we wish it. Among 
the curious grounds set forth to swell the English claim 
against us, to make it meet, if possible, the obvious 
money claim we had against Great Britain, if it was 
seen fit to enforce it, — we now put it in only as a set- 
off, — appears the testimony that our fishing- vessels, 
going into Newfoundland, employed the men there 
to fish, and that it had a very deleterious moral effect 
upon the habits of the Newfoundland fishermen; that 
they had been, up to the time the Americans appeared 
there to buy their bait, an industrious people, in a cer- 
tain sense; they had fished a certain part of the year 
under contracts, which it seems they could not get rid 
of, with a class of owners who held them in a kind of 
blissful bondage; but that when the Americans ap- 
peared, they led them to break these contracts; some- 
times tempted them to fall off from their agreements, 
and put money into their pockets ; they paid them for 
work; they gave them labor at a time when they ought 
to have been lying idle, — when it was better for them 
to lie idle ! Oh, it steadied them, improved them, raised 
their moral tone, to be idle, and tended to preserve 



HALIFAX FISHERY COMMISSION 383 

those desirable relations that existed between them 
and the merchants of St. John's ! A great deal was 
said about that; but at last there came upon the 
stand a witness, whose name, if I recollect, was Mac- 
donnell (page 313 of the British testimony), a British 
witness. I did not know that he would not be fully 
as well filled with these feudal opinions as the others 
had been. He said the people at Fortune Bay were 
well off. 

Nothing has been attempted since to contradict 
that statement. It is in accord with the nature of 
things. There is always danger in putting money 
in any man's hands, and there is also danger in pov- 
erty. The wise man saw that poverty had its perils as 
well as wealth ; and nothing can be worse for a people 
in the long run than the condition to which the fisher- 
men of Newfoundland had been reduced. And now, 
believing fully in this testimony of Mr. Macdonnell, 
I cannot doubt that our coming among them and 
buying their bait, stimulating them to work, and 
paying them money, has led to their hoarding money ; 
has led to their abstinence from those habits which 
so beset the half -employed and the idle man, who has 
a large season of the year with nothing to do, but has 
a reasonable expectation, that, what with his labor 
and what with his credit, somebody or other who owns 
the boats will support him and his family. 

I should like, also, to call your attention, on this 
question of getting bait, which is of some importance, 
to the testimony of Prof. Baird, which, I suppose, 
none of you has forgotten, which shows that we 
need not catch our bait for the cod in British waters. 
[Then follows a long extract from Prof. Baird's testi- 
mony supporting Mr. Dana's statement.] 



384 RICHARD HENRY DANA, JR. 

That is, of course, not very material, because it 
only goes to the point that we are not dependent 
upon catching bait within three miles of the British 
coast, anywhere. We have ways of using salt bait, 
and the use of all these scientific methods of pre- 
serving bait, which will, no doubt, be resorted to 
and experimented upon, and we may be quite certain 
that they will, in skilful hands, succeed. Nothing 
further upon that point need be considered by your 
Honors. 

I now call your attention to mackerel. The mack- 
erel, may it please your Honors, is a deep-sea fish. 
He does not lurk about anybody's premises. He does 
not live close in to the shore. He is a fish to whose 
existence and to whose movements a mysterious im- 
portance is attached. A certain season of the year 
he is not to be seen; and at other times, mackerel 
are so thick upon the waters, that, as one of the most 
moderate of the British witnesses said, you might 
walk upon them with snow-shoes, I believe it was 
from East Point to North Cape! I do not know that 
I have got the geography quite right, but it is some- 
thing like that. However, I do not doubt that the 
number is extraordinary at times, and at other times 
they are not to be seen. We do not know much about 
them. We know they disappear from the waters of 
our whole coast, from Labrador down to the extreme 
southerly coast, and then at the early opening of the 
spring they reappear in great numbers, armies of 
them. They can no more be counted than the sand 
of the sea, and are as little likely to be diminished 
in number. They come from the deep sea, or deep 
mud, and they reappear in these vast masses, and for 
a few months they spread themselves all over these 



ILVLIFAX FISHERY COMMISSION 385 

seas. A few of them are caught, but very few in pro- 
portion to the whole number, and then they recede 
again. Their power of multiplication is very great. 
I forget at this moment what Prof. Baird told us, but 
it is very great. They are specially to be found upon 
the banks of the Gulf of St. Lawrence, the Bradelle or 
Bradley Banks, the Orjihan, Miscou, Green, Fisher- 
man's Bank, and off the coast of Prince Edward 
Island, and especially, more than anywhere else, 
about the Magdalen Islands; and in the autumn, 
as they are passing down to their unknown homes, 
they are to be found in great numbers directly off the 
western coast of Cape Breton, near the highlands 
opposite Margaree island, and near Port Hood; but in 
the main, they are to be found all over the deep sea 
of the Gulf of St. Lawrence. The Gulf of St. Law- 
rence is full of ledges, banks, and eddies formed by 
meeting tides, which Prof. Hind described to us, and 
there the mackerel are especially gathered together. 
The map drawn on the British side, in the British 
interest, shows this enormous field for the mackerel 
fisheries; and though very few comparatively of the 
banks and ledges are put down, yet in looking over 
this map, it seems as if it was a sort of great directory, 
showing the abodes of the mackerel, and also the 
courses that the mackerel take in passing from one 
part of this great sea to another. There is hardly a 
place where mackerel fishing grounds are not marked 
out here, and they are nearly all marked out at a 
considerable distance from the shore, all around the 
Magdalen Islands, for many miles, and at a distance 
from Prince Edward Island, and on the various banks, 
ledges, and shoals that are to be found; and it is 
there, as I shall have the honor to point out to the 



386 RICHARD HENRY DANA, JR. 

Court more particularly hereafter, that they have 
always been caught in the largest quantities, and the 
best of them, by American fishermen. 

There are one or two experienced witnesses, from 
Gloucester, who have dealt with the subject carefully, 
for their own interests, not testifying for any particu- 
lar purpose, but having kept their books and accounts, 
and dealt with the mackerel in their own business, 
whose words I would like to recall to the attention of 
the Court for a few moments. 

The Commissioners will recollect the testimony 
of Mr. Myrick, an American merchant, who had 
established himself on Prince Edward Island. The 
inshore fishery, he said, is not suited to American 
vessels. Our vessels are large; they are built at a 
distance; they are manned by sixteen or seventeen 
men ; they cost a great deal ; they require large catches, 
and dealing with fish in large quantities, they deal at 
wholesale altogether, and not at retail. Retailing 
would ruin them. Anything short of large catches, 
large amounts, would be their end, and compel all 
the merchants to give up the business, or to take to 
boat-fishing, which, of course, Gloucester, or Massa- 
chusetts, or New England, or any part of the United 
States, could not undertake to carry on here. It has 
been stated to the tribunal, by experienced men, as 
you cannot but remember, that our fishermen object 
to going very near shore in the Gulf of St. Lawrence. 
There are perils of weather connected with the coast 
which cannot be set aside by ridicule. Gloucester is 
a town full of widows and orphans, whose husbands 
and parents have laid their bones upon this coast, and 
upon its rocks and reefs, trusting too much to the 
appearance of fine weather, as we all did last night, 



HALIFAX FISHERY COMMISSION 387 

waking up this morning in a tempest. Gloucester 
has tried to provide for these bereft people by every 
fisherman voluntarily paying a small percentage of 
his earnings to constitute a widows' and orphans' 
fund. Even the tempestuous Magdalen Islands are 
safer for vessels than are the inshore coasts of those 
islands, where we are now permitted to fish; their 
harbors are poor, their entrances are shallowed by 
sand-bars, which are shifting, which shift with every 
very high wind, and sometimes with the season. 
They are well enough after you get inside of them, 
but they are dangerous to enter, to persons inexperi- 
enced, — dangerous to any by night; and if a vessel 
is caught near the shore by a wind blowing inshore, 
against which she cannot beat with sails, for none of 
them carry steam, then she is in immediate peril. 
They therefore give a wide berth to the inshore fish- 
eries, in the main. They resort to them only occasion- 
ally. They are not useful for fishing with our seines. 
We find that the purse-seines are too deep; that they 
are cut by the ground, which is rocky; that it is 
impossible to shorten them without scaring the mack- 
erel, which must be taken by seines run out a great 
distance, for they are very quick of sight, and very 
suspicious of man; and they soon find their way out 
of the seines, unless they are laid a considerable dis- 
tance off. 

We need not catch our mackerel bait, any more 
than our cod bait, within the three-mile limit. On 
the contrary, the best mackerel bait in the world is 
the menhaden, which we bring from New England. 
All admit that. The British witnesses say they 
would use it, were it not that it is too costly. They 
have to buy it from American vessels; and they be- 



388 RICHARD HENRY DANA, JR. 

take themselves to an inferior kind of bait when they 
cannot afford to buy the best bait from us. And 
another result is that the Americans have shown for 
many years that what are called the shore mackerel 
— that is, those that are caught off the coast of Mas- 
sachusetts and several other of the New England 
States — are really better than the Bay mackerel. 
The evidence of that is the market prices they bring. 
It is not a matter of opinion. We have not called as 
witnesses persons who have only tasted them, and 
might have prejudices or peculiar tastes, but we have 
shown the market value. 

It is also true, a matter of testimony and figures, 
that the American catch, the catch upon the American 
shore, is very large, and has increased, and is attract- 
ing more and more the attention of our people en- 
gaged in fishing, and it is only this year that the shore 
fishing proved to be unprofitable, and the confiding 
men who were led to send their vessels to a consider- 
able extent, though not very great, into the Gulf, by 
reason of the British advertisements scattered about 
Gloucester, have come away still more disappointed 
than they had been by the shore fishing, because they 
had employed more time and more capital than their 
catch compensated them for. There are some statis- 
tics which I will read, taken from a prominent and 
trustworthy man, as to the American catch. David 
W. Low, on page 358 of the American evidence, 
states the figures as follows. [Statistics of Mr. Low, 
supporting the above statement, omitted.] 

The statistics of John H. Pew & Sons, put in by 
Charles H. Pew, p. 496, for the last seven years, from 
1870 to 1876, inclusive, show that the total, for that 
time, of Bay mackerel that their own vessels caught. 



HALIFAX FISHERY COMMISSION 389 

amounted to $77,995.22, and the shore mackerel for 
the same period was $271,333.54. Your Honors will 
recollect the statistics put in, which it is not necessary 
for us to transfer to our briefs, showing the exact 
state of the market on the subject of the proportion 
of American fish caught on the shores, and the pro- 
portion caught in the bay. 

We have introduced a large number of witnesses 
from Gloucester, and I think I take nothing to myself 
in saying that the greater part of them, those who 
profess to be engaged in the trade or business at all, 
were men of eminent respectability, and commended 
themselves to the respect of the tribunal before which 
they testified. You were struck, no doubt, with the 
carefulness of their book-keeping, and the philo- 
sophical system which they devised, by means of 
which each man could ascertain whether he was mak- 
ing or losing in different branches of his business; and 
as the skipper was often part owner, and usually 
many dealers managed for other persons, it became 
their duty to ascertain what was the gain or loss of 
each branch of their business. They brought for- 
ward and laid before you their statistics. They sur- 
prised a good many, and I know that the counsel on 
the other side manifested their surprise with some 
directness; but, may it please the Court, when the 
matter came to be examined into, it assumed a differ- 
ent aspect. We made the counsel on the other side 
this offer. We said to them, "There is time enough, 
there are weeks, if you wish it, before you are obliged 
to put in your rebuttal ; we will give you all the time 
you wish; send anybody to Gloucester you please, 
to examine the books of any merchants in Gloucester 
engaged in the fishing business, and ascertain for 



390 RICHARD HENRY DANA, JR. 

yourselves the state of the bay and shore fishing as 
it appears there." You say that bay fishing is as 
profitable as the shore fishing; that it has made a 
great and wealthy city of Gloucester, and you assume 
that it is owing to their having had, for the greater 
part of the time, a right to fish inshore. It would 
seem to follow from this reasoning, that whenever 
we lost the right to fish inshore, Gloucester must have 
receded in its importance, and come up again with 
the renewal of the privilege of inshore fishing. No- 
thing of that sort appears, in the slightest degree. 

"But," they say, "the Bay fishing must be of great 
importance, because of the prosperity of Gloucester." 
Now, the people of Gloucester have no disposition to 
deny their prosperity, but it is of a different kind 
from what has been represented. Gloucester is a 
place altogether sui generis. I never saw a place like 
it. I think very few of your Honors failed to form an 
opinion that it was a place well deserving of study 
and consideration. There is not a rich idle man, 
apparently, in the town of Gloucester. The business 
of Gloucester cannot be carried on, as mercantile 
business often is, by men who invest their capital in 
the business, and leave it in the hands of other people 
to manage. It cannot be carried on as much of the 
mercantile business of the world is carried on, in a 
leisurely way, by those who have arrived at some- 
thing like wealth, who visit their counting-rooms at 
ten o'clock in the morning, and stay a few hours, then 
go away to the club, return to their counting-rooms 
for a short time, and then drive out in the enticing 
drives in the vicinity, and their day's work is over. 
It cannot be carried on as my friends in New Bedford 
used to carry on the whale fishery, where the gentle- 



HALIFAX FISHERY COMMISSION 391 

men were at their counting-rooms a few months in 
the year, and when the off season came, they were at 
Washington, Saratoga, or wherever else they saw 
fit to go. And yet they were prosperous. No; the 
Gloucester tradesmen are hard-working men, and they 
gain their wealth and prosperity on the terms of being 
hard-working men. The Gloucester merchants, if 
you see fit to call them so, — they are not particular 
about their title, but are content to be "fish-dealers," 
— are men who go to their counting-rooms early and 
stay late. If they go up to Boston on business, they 
take a very early train, breakfast before daylight, 
and return in season to do a day's work, though Bos- 
ton is thirty and more miles distant; and when their 
vessels come in, they are down upon the wharves, 
they stand by the large barges, and they cull the 
mackerel with their own hands ; they count them out 
with their own hands ; they turn them with their own 
hands into the barrels, and cooper them, and scuttle 
the barrels, and put in the brine and pickle the fish, 
and roll them into the proper places; and when they 
have a moment's leisure, they will go to their count- 
ing-rooms and carry on their correspondence, by tele- 
graph and otherwise, with all parts of the United 
States, and learn the value of these mackerel. They 
are ready to sell them to the buyers, who are another 
class of persons, or they are ready to keep and sell 
them in the larger market of Boston. 

By their patient industry, by their simple hard 
day's works, they have made Gloucester an important 
place; but they have not added much to the mackerel 
fishery of the United States. Gloucester has grown 
at the expense of every other fishing town in New 
England. We have laid before your Honors, through 



392 RICHARD HENRY DANA, JR. 

Mr. Low, I think it was, or through Mr. Babson, the 
statistics of the entire falling off of all the fishing 
towns in New England. Where are Plymouth and 
Barnstable, where Marblehead, which was known the 
world over as a fishing town? There are no more 
fishing vessels there. The people have all gone into 
the business of making shoes and other domestic 
manufactures. So with Beverly, so with Manchester, 
so with Newburyport, and so with the entire State 
of Maine, with the exception of a very few vessels 
on the coast. Two or three of the last witnesses gave 
us a most melancholy account of the entire falling 
off of fishing in Castine, Bucksport, and all up and 
down Penobscot Bay and River, so that there is 
hardly any fishing left. When they were fishing towns, 
people employed their industry in it. Their harbors 
were enlivened by the coming and going of fishing 
schooners, and now there is an occasional weekly 
steamer or an occasional vessel there owned, but do- 
ing all its business in Boston and New York. But the 
fishing business of all the towns of New England, 
except the cod fishery of Provincetown and of the 
towns near, has concentrated in Gloucester. It seems 
to be a law that certain kinds of business, though 
carried on sparsely at periods, must be eventually 
concentrated. When they are concentrated, they 
cannot be profitably carried on anywhere else. The 
result is, that the mackerel fishery and cod fishery, 
with the exception of the remote points of Cape Cod, 
have concentrated in Gloucester. There is the cap- 
ital; there is the skill; there are the marine railways; 
there is that fishing insurance company, which they 
have devised from their own skill and experience, by 
which they insure themselves cheaper than any peo- 



HALIFAX FISHERY COMMISSION 393 

pie in the world ever did insure themselves against 
marine risks; so much so, that merchants of Glouces- 
ter have told us that if they had to pay the rates that 
are paid in stock companies, the fishing business could 
not be carried on by merchants who own their ships; 
the difference would be enough to turn the scale. 
Now it appears to be the fact, — I will not trouble 
your Honors by going over the testimony to which 
every Gloucester man swore, — it turns out to be 
the fact, that the prosperity of Gloucester, while it 
has additional resources in its granite, and as a sea- 
bathing place, has been owing mostly to the prudence 
and sagacity, the frugality and laboriousness, of the 
men brought up as fishermen, who turn themselves 
into fish-dealers in middle life, and carry their experi- 
ence into it; and it is only on those terms that Glouces- 
ter has become what it is. An attempt was made at 
Salem, under the best auspices, to carry on this 
business, with the best Gloucester fishermen and 
most experienced men concerned in it, by a joint- 
stock company ; but in the matter of deep-sea fishing, 
"the Everlasting" seems to have "fixed his canon" 
against its prosperity, except upon the terms of 
frugality and laboriousness. It never has succeeded 
otherwise, and scarce on those terms, except it be 
with the aid of bounties from the governments. 

Now, we say that the whole Bay fishing for mack- 
erel is made prosperous simply on those terms; that 
it is no treaty-gift that has created it, but it is the 
skill and industry of the fishermen, the capital in- 
vested by the owners, and the patient, constant labor 
and skill of the owners in dealing with their fish, after 
they are thrown upon their hands on the wharf and 
they have paid their fishermen, that has given to it 



394 RICHARD HENRY DANA, JR. 

any value in the market. I do not think it is worth 
while to speculate upon the question whether fish in 
the water have any money value. I can conceive that 
fish in a pond and that fish that cling to the shore, 
that have a habitat, a domicile, like shell-fish, have 
an actual value. They are sure to be found. It is 
nothing more than the application of mechanical 
means that brings them into your hands. But cer- 
tainly it is true, that the value of the free-swimming 
fish of the ocean, pursued by the deep-sea fishermen, 
with line or with net, must be rather metaphysical 
than actual. To pursue them requires an investment 
of capital; it requires risk and large insurance; it 
requires skill, and it requires patient labor; and when 
the fish is landed upon the deck, his value there, 
which is to be counted in cents rather than in dollars, 
is the result of all these things combined; and if any 
man can tell me what proportion of those cents or 
dollars which that fish is worth on the deck of the 
vessel is owing to the fact that the fishermen had a 
right to try for him, I think he will have solved a 
problem little short of squaring the circle, and his 
name ought to go down to posterity. No political 
economist can do it. I will not say that the fish in the 
deep sea is worth nothing; but, at all events, the right 
to attempt to catch it is but a liberty, and the result 
depends upon the man. 

If there can be no other fishery than the one which 
you have the privilege of resorting to, then it may be 
of great value to you to have that privilege. If there 
be but one moor where he can shoot, the person who 
is shooting for money, to sell the game that he takes, 
may be willing to pay a high price for the privilege. 
But recollect that the fishing for the free-swimming 



HALIFAX FISHERY COMMISSION 395 

fish is over the whole ocean. The power of extending 
it a little nearer shore may be of some value, — I do 
not say that it is not, — but it strikes my mind as 
an absurd exaggeration, and as an utter fallacy, to 
attempt to reason from the market value of the fish 
there caught, to the money value of the privilege 
so extended. The fish are worth, I will say, $12.00 a 
barrel ; but what does that represent, when the Ameri- 
can merchants. Hall and Myrick, both tell us that 
the value on the wharf at Prince Edward Island is 
about $3.75 a barrel? Well, suppose the mackerel to 
be worth $3.75 a barrel on the wharf in Prince Ed- 
ward Island, what does that represent? Is that a 
thing which the United States is to pay Great Britain 
for? Has Great Britain sold us a barrel of pickled 
mackerel on the wharf? Has anybody done it? I 
think not. That represents the result of capital and 
of many branches of labor. Then, if you ask, "What 
is the worth to Mr. Hall or Mr. Myrick of the mack- 
erel on the deck of the vessel?" I say, it is next to 
nothing. The fish will perish if he is not taken care 
of. Skill is to be used upon him, then; what costs 
money is to be used upon him, ice and pickle, and he 
is to be preserved. All this to the end that he may 
eventually, after a great deal of labor, skill, and cap- 
ital, be sent to the market. But, recollect that the 
vessel from whose deck he was caught cost $8000. 
Recollect, that the men who maintain that crew and 
feed them, and enable them to clothe themselves and 
follow that pursuit, are paying out large sums of 
money. Recollect, that the fisherman who catches the 
fish has, as the result of many years' labor, which may 
be called an investment, learned how to catch him ; and 
it is by the combination of all these causes, that at 



396 RICHARD HENRY DANA, JR. 

last the fish is landed. Now, in my judgment, it is 
purely fallacious to attempt to draw any inference 
from the market value of the fish to the right to 
extend your pursuit of those animals nearer the coast 
than before, or to the market value of any right to 
fish over a certain portion of the ocean, when all 
other oceans are open to you, and all other fish- 
eries. 

Your Honors, of course, recollect that the mackerel 
fishery, taken at its best, — I don't confine myself 
to the inshore fishery; I mean the mackerel fishery 
of the Bay and the Gulf, at its best, the whole of it, 
— is of a greatly decreasing and precarious value. 
I speak only of the salted mackerel that is sent into 
the United States. The lake fish are fast becoming a 
substitute for salt mackerel. I will call your Honors' 
attention to two or three rather striking proofs which 
were not read previously by Judge Foster. 

[Then follow references to testimony in support.] 
Then there are other fresh fish that are taking the 
place of the salt mackerel. The question is not be- 
tween British mackerel and American mackerel, but 
it is between mackerel and everything else that can 
be eaten: because, if mackerel rise in market price, 
and in the cost of catching, people will betake them- 
selves to other articles of food. There is no necessity 
for their eating mackerel. The mackerel lives in the 
market only upon the terms that it can be cheaply 
furnished. This tribunal will recollect that interest- 
ing witness, Mr. Ashby, from Noank, Conn.; how 
enthusiastic he was over the large halibut that he 
caught; how his eyes gleamed, and his countenance 
lightened, when he told your Honors the weight of 
that halibut, the sensation produced in Fulton Mar- 



HALIFAX FISHERY COMMISSION 397 

ket when he brought him there, and the very homely, 
but really lucid way in which he described the superior 
manner by which they were able to preserve those 
fish in ice, and the way they were brought into mar- 
ket; and how the whole horizon was dotted with 
vessels fishing for halibut, and other fresh fish, with 
which to supply the great and increasing demand in 
the New York market. There is also the testimony 
of Professor Baird, who speaks of various kinds of fish. 
It is not worth while to enumerate them all, but he 
speaks especially of a fish known as "mullet" on the 
Southern coast. So long as slavery existed, it is un- 
doubtedly true that there was very little enterprise 
in this direction. It suft'ered like everything else but 
cotton, rice and sugar, staples which could be culti- 
vated easily by slave labor. Almost every other form 
of agriculture, almost all kinds of maritime labor, 
ceased. The truth was, the slaves could not be trusted 
in boats. The boats would be likely to head off from 
South Carolina or Virginia, and not be seen again. 
The vessels that went to the ports of the slave States 
were Northern vessels, owned and manned by North- 
ern people. Southern people could not carry on com- 
merce with their slaves, nor fishing with their slaves. 
Slavery being now abolished, the fisheries of the 
Southern States are to be developed. The negro will 
fish for himself. He will have no motive for running 
away from his own profits. The result has been that 
this mullet has come into very considerable import- 
ance. Professor Baird has his statistics concerning 
it, and he has certainly a very strong opinion that 
that fish is in danger of excluding salted mackerel 
from the Southern markets (indeed, it is almost 
excluded now), and that it will work its way up to the 



398 RICHARD HENRY DANA, JR. 

Northern markets. Some of the Southern people 
think very highly of it, as the best kind of fish, think 
it has not its superior in the ocean; but, supposing 
that to be local exaggeration and patriotic enthusiasm, 
yet certainly it is a useful and valuable fish, and the 
demand for it is rapidly increasing. Professor Baird 
says, on page 460, that one million barrels of mullet 
could be furnished annually, from the south shore of 
Chesapeake Bay to the south end of Florida, if they 
were called for. 

Your Honors will recollect, as a striking illustra- 
tion of the truth of the power of propagation, the 
statement of Professor Baird in regard to the River 
Potomac, where a few black bass, some half dozen, 
were put into the river, and in the course of a few 
years they were abundant enough to supply the mar- 
ket. Fish culture has become a very important mat- 
ter, and what we call in New England our "ponds," 
small lakes and rivers, are guarded and protected, and 
every dam built across any river where anadromous, 
or upward-going fish, are to be found, has always a 
way for their ascent and descent; so that everything 
is done to increase the quantity, kind, and value of 
all that sort of fish, making the salted mackerel less 
important to the people, and in the market. 

Then the improved methods of preserving fish are 
astonishing. I think the evidence on that point was 
principally from Professor Baird, who has described 
to us the various methods by which fish, as well as 
bait, may be preserved. He told us that for months, 
during the hottest part of the Exhibition season at 
Philadelphia, during our Centennial year, fish were 
kept by these improved chemical methods of drying, 
and methods of freezing, so that after months, the 



HALIFAX FISHERY COMMISSION 399 

Commissioners ate the fish, and found them very 
good eating. There was no objection whatever to 
them, although, of course, they were not quite as 
good as when they were entirely fresh. So that all 
science seems to be working in favor of distribution, 
instead of limitation, of what is valuable for human 
consumption; and the longer we live, and the more 
science advances, the less can any one nation say to 
the fishermen of another, Thus far, and no farther! 
We turn upon such an attempt at once, and say, 
"Very well; if you choose to establish your line of 
exclusion, do it. If you choose to throw all open, do 
so. We prefer the latter as the generous, the more 
peaceful and safe method for both parties. If you 
prefer the former, take the expense of it, take the 
risk of it, take the ignominy of it! If you give it up, 
and it costs you anything to do so, we will pay you 
what it is worth to us." 

I certainly hope that after our offer to open the 
books of any merchant in Gloucester, or any number 
of merchants, to the other side, it will not be said that 
we have selected our witnesses. The witnesses that 
we brought here, both fishermen and owners, said 
that the bay fishery was dying out. They show it by 
their own statistics, and the statistics of the town of 
Gloucester show how few vessels are now engaged 
in the bay fishery; that they are confining their atten- 
tion to cod fishing and shore fishing, with weirs, nets, 
pounds, and seines. 

We did not bring the bankrupt fish-dealers from 
Gloucester, the men who have lost by attempting to 
carry on these bay fisheries, as we might have done. 
We did not bring those who had found all fishing 
unprofitable, and had moved away from Gloucester, 



400 RICHARD HENRY DANA, JR. 

and tried their hand upon other kinds of business. 
We brought, on the other hand, the most prosperous 
men in Gloucester. We brought those men who had 
made the most out of the fisheries, the men who had 
grown richest upon them, and we exhibited their 
books ; and as we could not bring up all the account- 
books of Gloucester to this tribunal, we besought the 
other side to go down, or send down a commission, 
and examine them for themselves. I certainly think 
we have a right to say, that we have turned Gloucester 
inside out before this tribunal, with the result of show- 
ing that the bay fishing has gradually and steadily 
diminished, that the inshore fishery is unprofitable, 
that the bay fishery has been made a means of sup- 
port only to the most skilful, and by those laborious 
and frugal methods which I have before described to 
this tribunal. 

I have no instructions from my country, gentlemen 
of the Commission, and no expectation from its 
government, that I should attempt to depreciate the 
value of anything that we receive. We are not to 
go away like the buyer in the Scripture, saying, "It 
is nought; it is nought"; but we have referred to a 
Commission, which will stand neutral and impartial, 
to determine for us; and no proclamation of opinion, 
however loud, will have any effect upon that Com- 
mission. My country stands ready to pay anything 
that this Commission may say it ought to pay, as I 
have no doubt Great Britain stands content, if you 
shall be obliged to say, what we think in our own 
judgment you should say, that you cannot see in this 
extension, along the fringes of a great garment, of 
our right to fish over portions of this region, anything 



HALIFAX FISHERY COMMISSION 401 

which equals the money value that the British 
Dominion and Provinces certainly receive from an 
obligation on our part to lay no duties whatever upon 
their importations of fish and fish-oil. But while we 
are not here to depreciate anything, it is our duty to 
see to it that no extravagant demands shall pass unchal- 
lenged, to meet evidence with evidence, and argument 
with argument, fairly, before a tribunal competent and 
able. We do not mean that our side shall suffer at all 
from too great depreciation of the evidence and argu- 
ments of the counsel for the Crown, as we feel quite 
sure that the cause of the Crown has suffered from 
the extravagant demands with which its case has 
been opened, and the extravagant and promiscuous 
kind of evidence, of all sorts of damages, losses, and 
injuries, which it saw fit to gather and bring before 
this tribunal, from the fisherman who thought that 
his wife had been frightened and his poultry-yard 
robbed by a few American fishermen out upon a lark, 
to the Minister of Marine and Fisheries of the Do- 
minion, with his innumerable light-houses and buoys 
and improved harbors. We are to meet argument 
with argument, evidence with evidence, upon the 
single question submitted ; and that is, as I have had 
the honor to state before, "Is there a money value in 
this extension of our right, or rather this withdrawal 
of the claim of exclusion, on the part of Great Britain, 
greater than the value which Great Britain certainly 
receives from our guaranty that we will lay no duties 
whatever upon her fish and fish-oil?" 

Now, may it please your Excellency, the question 
is not whether two dollars a barrel on mackerel and 
one dollar a barrel on herring is prohibitory, because 
we had a right, before making this treaty, to lay 



402 RICHARD HENRY DANA, JR. 

duties that should be prohibitory, if those were not. 
If two dollars were not, we could lay as much as we 
pleased; so that it would be an imperfect considera- 
tion of this case, it has been all along an imperfect 
consideration of this case, to ask the question whether 
two dollars a barrel is prohibitory, whether two dol- 
lars a barrel on mackerel or one dollar a barrel on 
herring can be overcome by any commercial method 
or enterprise of the Dominion and the Provinces. 
The question has been between the right to be secured 
against laying duties indefinitely, on the part of the 
United States, on the one hand, and this extension 
of the right of fishing a little nearer to the shores, on 
the other. We could, if we saw fit, make a kind of self- 
adjusting tariff, that whenever fish rose above a cer- 
tain price, then the Dominion fish might be admitted, 
and otherwise not; or we could hold it in our hands, 
and legislate from day to day as we saw fit. 

Before leaving this question of the money value 
of the withdrawal of the claim of exclusion from a 
portion of this coast by Great Britain, I must take 
the liberty to repeat to this Court, that I may be sure 
that it does not escape their fullest attention, that 
the right to exclude us, independent of the Treaty of 
1818, we do not, and never have acknowledged; and 
by the Treaty of 1818, we arranged it as a compro- 
mise on a disputed question. That claim to exclude 
is contested, difficult of interpretation, expensive, 
and dangerous. The geographical limit is not easily 
determined; in respect to bays and harbors, it is 
entirely undetermined, and apparently must remain 
so, each case being a case a good deal sui generis; and 
the meaning and extent of the power and authority 
which goes with that geographical extension beyond 



HALIFAX FISHERY COMMISSION 403 

the shore, whatever it may be, is all the more uncer- 
tain and undetermined. Under the Treaty of 1818, 
my country certainly did agree that she would not 
fish nor assert the claim to the right of fishing within 
three miles of a certain portion of this great bay. 
Great Britain, by the Treaty of 1871, has withdrawn 
all claims to exclude us from that portion; and we 
agreed that if there is any pecuniary value in that 
beyond the pecuniary value of what we yield, we 
stand ready to make the requisite compensation. 

It is extremely difficult, certainly to my mind, and 
I cannot but think, from conversation and reading, 
that it must be to others, to determine the pecuniary 
value of a mere faculty, as we may call it, a faculty 
according to the Roman law, a liberty, perhaps, of 
endeavoring to catch the free-swimming fish of the 
ocean. What is its pecuniary value? How is it to be 
assessed and determined .^^ Why, it is not to be assessed 
or determined by the amount of fish actually caught. 
That may be very small, or may be very large. The 
market value may be raised or decreased by accident; 
a war may so cut us off from making use of the privi- 
lege, that we should take nothing. It does not fol- 
low, therefore, that we are to pay nothing. Some 
cause, some accident, some mistake of judgment, 
may send a very large fleet here, at a very great ex- 
pense of men and money; we may make a very large 
catch, more than we can dispose of, but the pecuniary 
value of that catch is no test of the value of the lib- 
erty of trying to catch the fish. Then, what is the 
test? Is the use made a test? Although, at first glance, 
it might seem that that was scarcely a test, yet I 
think that, on the whole, in the long run, if you have 
a sufficient period of time to form a fair judgment, if 



404 RICHARD HENRY DANA, JR. 

your judgment is based upon the use made by persons 
who are acting for their own interests in a large market, 
then you may form some judgment from the use actu- 
ally made. This case has been likened by the counsel for 
the Crown to one where an individual has hired a farm, 
and on the farm there is a house or dwelling, and he 
has not used it. Of course he has to pay for it, whether 
he uses it or not. It is at his disposal; it belongs there; 
it is fixed there, and he may enter it when he pleases, 
and it is of no account whether he does use it or does 
not. But if the question was, whether a certain re- 
gion of a city and the buildings thereon were of real 
value or not, and it was brought up as an argument 
against them, that they were not wholesome and not 
habitable, certainly the fact that in the market, for 
a long period of years, purchasers or tenants could 
not be found, would be a very strong argument 
against their value. 

Now, with reference to these fisheries, what is the 
value of the mere faculty or liberty of going over 
these fishing grounds, and throwing overboard our 
costly bait, and embarking our industry, capital, and 
skill, in the attempt to catch the fish.^^ We venture 
to say, that we have had many years of experience, 
and that there have been long periods of time when 
those fisheries have been opened to us, and they have 
been closed for short periods of time; that from 1871 
down to the present time we have also had a fair test; 
and when we show, by undisputed testimony, that 
the citizens of the United States, during long periods 
of time, and as a result of long experience, have come 
to the conclusion that they are not of sufficient value 
to warrant them, as merchants and as men acting 
for their own interests, to make much use of them, 



HALIFAX FISHERY COMMISSION 405 

I submit that we have brought before the tribunal 
a perfectly fair argument, and a very valuable test; 
because it is not what one man will do with one house; 
it is not what one ship-master or one ship-owner may 
fancy about the inshore or the outshore fisheries; 
but it is a question of what a large number of men, 
acting for their own interests, in a very large market, 
full of competition, will do. If, on inquiring into the 
state of that market, and the conduct of such men, 
who cannot be governed by any peculiar and special 
motive bearing upon this case, we have produced a 
fair and influential consideration, we claim that that 
is entitled to its fair w^eight. You might well say, 
perhaps, of a few fishermen of Gloucester, that so 
deep was their hostility to the British Provinces, that 
they would be willing to abstain from using these 
fisheries, just for the purpose of reducing the amount 
that this tribunal might find itself called upon to 
adjudge. But, if there should be one such man, so 
endowed with disinterested malice, I am quite cer- 
tain that this tribunal will not believe so of the entire 
fishing community of buyers and sellers, fishermen 
and merchants, acting for a series of years, in view of 
their own interests. If, therefore, we have shown, as 
we certainly have, that the use of this Bay fishery, as 
an entirety, the whole of it, deep-sea and inshore 
alike, has steadily diminished in market value, that 
our ship-owners are withdrawing their vessels from 
it, that fewer and fewer are sent here every year, and 
that they have said, man after man, that they do not 
value the extension of the territorial privilege, where 
that extension is always inshore, bringing them into 
more dangerous and less profitable regions, — that 
being the case, we ask your Honors to consider all 



406 RICHARD HENRY DANA, JR. 

this as fair proof of the slight value which is actually- 
put, by business men, acting in their own interests, 
upon what has been conceded to us. 

Now, what is this that has been conceded to us, or 
rather, what is this claim of exclusion from which 
Great Britain has agreed to withdraw herself during 
the period of this treaty.^ What is the privilege? 
It is the privilege of trying to catch fish within that 
limit. That is all it is. Now, if in company with this 
privilege, Great Britain had furnished the fish, so 
that we should not have to employ vessels, or men, 
or skill, or labor, or industry, furnished them to us 
on the wharf at Prince Edward Island, then there 
might be some analogy between that and a lease. 
What is it like.^ Is it like the value of a privilege to 
practise law? Not quite, because there always will 
be lawsuits, but it is not sure that there always will 
be mackerel. Suitors, irritated men, may be meshed 
within the seine which the privileged lawyer may cast 
out; but it does not follow that the mackerel can be. 
On the contrary, they are so shrewd and so sharp that 
our fishermen tell us that they cannot use a seine 
within their sight; that they will escape from it. But 
the lawyer is so confident in the eagerness of the client 
for a lawsuit, that, instead of concealing himself, and 
taking him unawares, he advertises himself and has 
a sign on his place of business. Suppose we were to 
compare it to the case of a lawyer who had a general 
license to practise law in all parts of a great city, but 
not a monopoly; everybody else had the same right; 
but he was excluded from taking part in cases which 
should arise in a certain suburb of that city, — not the 
best, not the richest, not the most business-like, — 
and which had lawyers of its own, living there, accus- 



HALIFAX FISHERY COMMISSION 407 

tomed to the people, who asserted a right to conduct 
all the lawsuits that might arise in that district. What 
would it be worth to a lawyer who had the whole city 
for the field of labor, plenty to do, to have his right 
extended into that suburb? What would it be worth 
if that suburb was an indefinable one, not bounded 
by streets, but by some moral description, about 
which there would be an eternal dispute, and about 
which the lawyer might be in constant trouble with 
the policeman? What would be its value? Who can 
tell? Or a physician or merchant. Suppose a merchant 
is asked to pay for a license to buy and sell, to keep 
a retailer's shop; everybody else has the same right 
that he has, and half the people are doing it without 
any license; but he is asked to pay for a license. 
What is it worth to him? Why, not much, at best. 
But suppose that the license was confined to the right 
to deal in Newfoundland herring. W^hile everybody 
else could deal with other fish, his license extended 
his trade to Newfoundland herring alone. Why, his 
answer would be, "There are plenty of herring from 
other places that I can deal with. There is a large catch 
in the Gulf; there is a large catch on the Labrador 
shore; and what is it worth to me, with my hands 
full of business, to be able to extend it a little farther, 
and include the dealing with this particular kind of 
fish?" 

None of the analogies seem to me to hold. Your 
Honors can do nothing else than first to look at the 
practical result in the hands of business men ; and the 
result is this: to those who live upon the shore and can 
go out day after day, and return at night, in small 
boats, investing but little capital, going out whenever 
they see the mackerel and not otherwise, and coming 



408 RICHARD HENRY DANA, JR. 

back to finish a day's work upon their farms, — to 
them it is profitable, for almost all they do is profit; 
but to those who came from a distance, requiring a 
week or a fortnight to make the passage, in large 
vessels, which the nature of the climate and of the 
seas requires should be large and strong and well 
manned, who have the deep sea before them, and 
innumerable banks and shoals, where they can fish, 
— to them, the right to fish a little nearer inshore is 
of very much less value. That is the position of the 
American. The other is the position of the English- 
man. And the fact that we have steadily withdrawn 
more and more, from that branch of the business, 
is a proof that it is of little value. 

Then, beyond that, I suppose you must make some 
kind of estimate, for I am not going to argue that the 
faculty is of no value. I suppose the right to extend 
our fisheries so far is of some value. I can find no 
fair test of it. But recollect, Mr. President and 
gentlemen, as I say again, that it is but a faculty, 
which would be utterly useless in the hands of some 
people. Why, it has been found utterly useless in the 
hands of the inhabitants of this Dominion. What 
did they do with it before they took to their day and 
night boat-fishing? What has become of their fishing 
vessels? Gone! The whole inshore and outshore 
fishery became of no value to them, until they sub- 
stituted this boat-fishing, which we cannot enter 
into. Then, having before you this very abstract 
right or faculty, obliged to disconnect from it every- 
thing except this, — that it is an extension of the field 
over which we had a right to work, — you can get 
nothing, I think, upon which you can cast a valuation. 
Nor is it strictly analogous to a field for labor, because 



HALIFAX FISHERY COMMISSION 409 

a field for labor is a specific thing. When you buy it, 
you know what it will produce ; and if you sow certain 
seed, you will get certain results; and then, having 
deducted the value of your labor, and skill, and in- 
dustry, and capital, and allowed yourself interest, 
the residue, if any, is profit. That depends upon the 
nature of the soil with which you have been dealing. 
But nothing of that sort can be predicated of the free- 
swimming fish. They are here to-day and there to- 
morrow; they have no habitat; they are nobody's 
property, and nobody can grant them. 

I have dealt with this subject as I said we were to 
deal with it; not to depreciate it unreasonably, but 
to analyze it, and try to find out how we are to meas- 
ure it. And having analyzed it in this way, — which 
I am sure is subject to no objection, unless I carry it 
to an extreme; the methods which I have used in 
themselves are subject to no objection, — it cannot 
be strange to your Honors that the people of the 
United States said, through their government, that 
in securing from Great Britain her withdrawal of this 
claim of exclusion from these three miles, we did it, 
not for the commercial or intrinsic value of the right, 
so much as because of the peace and freedom from 
irritation which it secured to us. 

And that leads me to say, what perhaps I should 
have otherwise forgotten, that in estimating the value 
to the people of the United States of the right to 
pursue their fisheries close to the shore in certain 
regions, you are not to estimate what we have gained 
in peace, in security from irritation, from seizures, 
and from pursuit. Those are the acts and operations 
of the opposite party. It is the value of the right to 
fish there, alone, that you are to consider. Why, if 



410 RICHARD HENRY DANA, JR. 

you pay to an organ-grinder a shilling to go out of 
your street when there is sickness in your house, it 
does not follow that his music was worth that price. 
Nobody would think of considering that a test of the 
value of his music, if a third person was appointed to 
determine what it was. So, here; what we were will- 
ing to do to get rid of a nuisance, of irritation, of 
dangers of war, of honest mistakes, and opportunities 
for pretended mistakes, — what we were willing to 
pay for all that, is no proof of the price at which we set 
the mere liberty of being there peacefully and in the 
exercise of a right. 

Your Honors will be glad to know that I am now 
going to take up the last point of importance in our 
case; and that is, the value of the free trade which this 
treaty has given to all the people of the Provinces. 
Recollect what that value is. It is true that in 1871, 
when we made this treaty, our duties were two dol- 
lars a barrel on mackerel and one dollar a barrel on 
herring; but our right was to make these duties what- 
ever we pleased, — absolute exclusion, if two dollars 
and one dollar did not exclude. We had a right to 
legislate with a simple view to our own interests in 
that matter; and neither the Crown nor the Dominion 
could be heard on the floor of Congress. But we have 
bound our hands ; we have pledged ourselves that we 
will put no duties on any of their fish of any kind, 
fresh or cured, salted or otherwise, or their fish-oil. 
They may, so long as the treaty lasts, be imported 
into any part of the United States without any in- 
cumbrance or duty whatever. Now, that the United 
States is the chief market for the mackerel of these 
Provinces, I suppose it cannot be necessary for me to 
refer to any evidence to remind your Honors. We 



HALIFAX FISHERY COMMISSION 411 

have had before us the merchants who deal most 
largely in Prince Edward Island, Mr. Hall and Mr. 
Myrick, and we have had two or three or more mer- 
chants of Halifax, who did not come here for the 
purpose of testifying against their own country, and 
in favor of the United States; and from all this evi- 
dence it appears conclusively that, with the excep- 
tion of some inferior mackerel, ill-pressed or ill-cured, 
and not much the worse for heat, that may be sent 
to the West Indies to be consumed by slaves, the 
entire product goes to the United States. There is no 
market for it in Canada proper; and the merchants 
here, the dealers in fish, lie awaiting the telegraphic 
signal from Boston or New York to send there what- 
ever of best mackerel there is, now that they are free 
from duty. I therefore think I may safely pass over 
the testimony introduced to prove that the United 
States is the great market. Some statistics were pre- 
pared to show that a duty of two dollars a barrel was 
prohibitory. In my view, it is quite immaterial. I 
cannot see how it is material, because, having the 
power to lay any duties we pleased, we have agreed 
to lay none, and the benefit to Great Britain, to these 
Provinces, and to this Dominion, is the obtaining of 
a pledge not to put on any duty, high or low, from a 
people who had the right to exclude the fish utterly, 
or to make their utter exclusion or their admission 
dependent upon our sense of our own interests from 
day to day. 

The evidence presented by my learned friend Judge 
Foster, and by my learned friend Mr. Trescot, to 
show that two dollars a barrel was prohibitory, on 
the testimony of these gentlemen from Prince Ed- 
ward Island, and from the leading dealers in Province- 



412 RICHARD HENRY DANA, JR. 

town and in Gloucester, was certainly abundantly 
sufficient. I think those gentlemen from Prince Ed- 
ward Island said that if those duties were re-imposed, 
they should retire from the business. Mr. James H. 
Myrick (page 432) in answer to the question, "I 
understand you to say that if the duty on mackerel 
were re-imposed in the United States your firm would, 
except for a small portion of the season, give up the 
mackerel business and turn to something else.^^" said, 
"That is my opinion, decidedly." 

Then Mr. Pew, of Gloucester, testifies to the same 
effect; but I suppose there can be no doubt, under 
this weight of testimony. But the money charge 
against Great Britain is for the privilege of exemption 
from prohibitory duties, whatever may be prohibitory, 
whether it be two dollars or more. 

Now, how was it, with this plain fact in view, that 
the learned counsel for the Crown were able to pro- 
duce so many witnesses, and to consume so much 
time, in showing that they did not, after all, lose much 
by two dollars a barrel duty? Why, my learned 
friends who have preceded me have exposed that very 
happily. I fear if I were to say anything, I should 
only detract from the force of their argument; but 
I think it is fair to say, that it will rest on our minds 
after we have adjourned and separated as a most 
extraordinary proceeding, that so many men were 
found in various parts of the Island, and from some 
parts of the mainland, who came up here and said 
that the fact that they paid a duty of two dollars on 
a barrel of mackerel before they sold it in the States, 
which is their only market, did not make any differ- 
ence to them. They said it did not make any differ- 
ence. They did not say it made little difference, but 



HALIFAX FISHERY COMMISSION 413 

they said it did not make any. Now, if they had said, 
"We can catch the fish so much cheaper, because this 
is our home; we can catch them so much cheaper, 
because we catch them in cheap vessels and with 
cheap materials, close by where we live, that we can 
afford to undersell, to some extent, the American 
fishermen; and therefore the two dollars a barrel is 
not all to be counted to our debit," that would be 
intelligible. But these fishermen suddenly, by the 
magic wand of my learned friend, the Premier of the 
Island, and my learned friend who represents — I 
do not know in how high a position — the Province 
of New Brunswick, were all turned into political 
economists. "Well, my friend," says the learned 
counsel for Prince Edward Island, with that enticing 
smile which would have drawn an affirmative answer 
from the flintiest heart, "My dear friend, about this 
two dollars a barrel duty: does not that affect your 
profit in selling in Boston?" — "No," says the ready 
witness. — "And why not?" — "Why, because the 
consumer 'pays the duty.'' Then the next witness, 
under perhaps the sterner — but still equally effec- 
tive — discipline of the counsel from New Brunswick, 
has the question put to him, and he says, "No"; and 
when he is asked how this phenomenon is to be ac- 
counted for, he says, too, that ^'the consumer pays 
the duty''' ; until, at last, it became almost tedious to 
hear man after man, having learned by heart this can- 
tilena, — "the consumer pays the duty," — perfectly 
satisfied in their own minds that they had spoken 
the exact truth, say that it did not make any dift'er- 
ence. 

What school of politicians, what course of public 
lectures, what course of political speaking, what 



414 RICHARD HENRY DANA, JR. 

course of newspaper-writing, may have led to that 
general belief, or at least expectation, of those fisher- 
men who came here as political economists, of course 
it is not for me to say. But I have observed one thing, 
that even with my limited knowledge of political 
economy, and under even my cross-examination, not 
one of those witnesses could explain what he meant 
by the phrase, "the consumer pays the duty"; nor 
could he answer one question that went to test the 
truth of the maxim. " Suppose the duty had been five 
dollars a barrel, would it have been true that the con- 
sumer paid the duty, and that it would not disturb 
you at sdW" Well, they did not know but that, in 
that case, it might be a little different. "But the 
principle would be the same? " No, they did n't know 
how that would be. "Will the demand continue, at 
that price.^" That they did not know, but they 
assumed it would. 

The truth was, as the Court must have seen, that 
they were simple, honest men, who had a certain 
phrase which they had learned by heart, which they 
used without any evil intent, which they supposed 
to be true, and which, to their minds, cleared the 
matter all up. They seemed to think there was a 
certain law, — they did not know what, — a law of 
nations, a law of political economy, by which it came 
to pass, that, whenever they brought a barrel of 
mackerel to Boston to sell, the purchaser went kindly 
to the custom-house and paid the duties, and then, 
having paid the duties, was prepared to deal with the 
owners of the fish on the same terms as if he had not 
.done so, buy the fish, and pay them just what he 
would pay an American; and by some law, some in- 
exorable law, the duties were paid by this man; and 



HALIFAX FISHERY COMMISSION 415 

the duties having been paid by him, the owners might 
go into the market to sell as low as anybody else. I 
think the question was not put, but it might have been 
put to them: "Suppose the duty, instead of being laid 
by the United States, had been laid by the Provinces. 
Suppose the Dominion, for some reason or other, 
had laid a tax of two dollars a barrel on the exporta- 
tion of fish to the United States .^^ " — where would 
this political economist from Gaspe and from Shediac 
have been then? Why, certainly he would have had 
to pay his two dollars a barrel before his fish left the 
Provinces, and he would have landed in Boston with 
his barrel of mackerel, so far as the duties went, two 
dollars behind the American fisherman. 

I suppose it to be the case, that the British subject 
can catch his fish and get them to Boston cheaper 
than the American can. I give them that credit on 
this calculation, and I hope your Honors will remem- 
ber it when you come to consider what they have 
gained by the right to introduce their fish on free and 
equal terms with us. They are persons who can catch 
cheaper and bring cheaper than our own people. 
However, without reasoning the matter out finely, 
we must come to this result: that if the American can 
supply the market at the rate of twelve dollars a 
barrel, and make a reasonable profit, and the Cana- 
dian can furnish his fish at the rate of eleven dollars 
and make a reasonable profit, and has two dollars 
duty to pay, he is one dollar behind, and so on. This 
is an illustration. It must ordinarily be so. And the 
only time when it can be otherwise is when the Ameri- 
can supply fails, and fish become very scarce. I am 
sure that when I began the investigation of this case, 
I should have thought that it was in the main true, 



416 RICHxiRD HENRY DANA, JR. 

that as fish became scarce on the American coast, 
and from the American fishermen in the Bay every- 
where, the British fishermen coming in there could, 
perhaps, afford to pay the duty and still sell. But 
such is not the result. The figures have shown it. 
That has been proved. The difficulty is, that mack- 
erel is not a necessity. It is not British mackerel 
against American mackerel, but it is British salted 
mackerel against every eatable thing in nature, that 
a man will take to rather than pay very high prices. 
And it is true that fresh fish are more valuable and 
more desirable than salt fish; that fresh fish are in- 
creasing in number; that they are brought into mar- 
ket in quantities, ten, twenty, a hundred per cent 
larger than they ever were before, and that the value 
of the salted mackerel is steadily and uniformly 
decreasing. 

They brought men here, also, who stated, under 
the same inffuence, that they would rather see the 
duties restored, and have the three-mile fishery 
exclusively to themselves, than to have what they 
now have. But I observed that the question was 
always put to them in one form: "Would you rather 
have the two-dollar duty restored?" The question 
was never asked them: "Would you rather go back 
to the state of things when the United States could 
put what duty upon your fish they might see fit, and 
preserve your monopoly of the three miles?" No 
man would have answered that question in the aflSrm- 
ative. I venture to say, may it please this learned 
tribunal, that no man of decent intelligence and fair 
honesty could have answered any such question 
affirmatively. And those who said they would rather 
go back to the same state of things testified under a 



HALIFAX FISHERY COMMISSION 417 

great deal of bias; they testified under a very strong 
interest, on a subject right under their eyes, which 
they felt daily, and which they may have been made 
to feel by the urgency of others. They did not suffer 
at all. It was not they who suffered from the attempt 
to exclude us. It was amusement to them, though 
it might have been death to some of us; and they 
imagined that if they did not have the duty to pay, 
which they all based their answer upon, of course 
they would rather go back to free trade and exclusion, 
for in their minds it amounted to that. They had 
not the duty to pay, although one was laid; and of 
course with no duty to pay, they would rather go 
back to that old state of things, and have the ex- 
clusive right to fish within three miles. I think that 
illusion may be safely predicated of nearly all the wit- 
nesses brought upon the opposite side, by the counsel 
for the Crown. 

A good deal of time was taken up on each side in 
presenting extracts from the speeches of politicians 
and parliamentarians, and men in Congress, as to 
what was the real value of free trade in fish, and the 
real value of the right to fish within three miles. 
Some extracts were read by the learned counsel for 
the Crown from speeches made by certain members 
of the American Congress, who had a point to carry; 
and some arguments, much stronger, were produced 
by us from members of the Dominion government, 
who also had a point to carry. I do not attach the 
very highest importance to either of them. I hope I 
am guilty of no disrespect to the potentates and 
powers that be in saying that, because I have always 
observed that men in public life who have points 
to carry will usually find arguments by which to 



418 RICHARD HENRY DANA, JR. 

carry them, and that their position is not very differ- 
ent from that of counsel, not before this tribunal, 
but counsel in court, strictly speaking, who have a 
point to maintain, and who have a verdict to get, 
because, woe to the statesman whose argument 
results in a majority of negatives, because he and his 
whole party, under the Dominion system, go out of 
power. It is not so with us. Our members of Con- 
gress speak with less responsibility. They do not 
represent the government in the House, nor do they 
represent the opposition in such a sense that they are 
bound to take charge of the government the moment 
those in charge fail of retaining public approval. Our 
politicians, even in Congress, are a kind of "free- 
swimming fish." They are rather more like a horse 
in a pasture than like those horses that are carrying 
the old family coach behind them. They feel more 
at liberty. 

When we consider that the Dominion parliamen- 
tarians speak under this great responsibility, and 
meet an opposition face to face, who speak under 
equal responsibilities, when we consider that fact, 
and the number of them, and the strength of their 
declarations, all to the effect that the Provinces could 
not survive our duties any longer, and that in giving 
up to us the right to fish within the three miles, much 
was not surrendered, I think your Honors, without 
reading it all over, or comparing these arguments, 
argument for argument, may say at once that what- 
ever weight is to be attached to them, far more weight 
is to be attached to the utterances of the British 
oflScers than to the few American politicians who may 
have lifted up their voices on this subject, in their 
irresponsible way. Moreover, — your Honors cannot 



HALIFAX FISHERY COMMISSION 419 

have forgotten it, — the fishermen of Provincetown 
and Gloucester remonstrated against this Treaty of 
1871. They remonstrated against it as hostile to 
their interests. Be it so. They were good judges of 
their interests. They stated that taking off the duties 
would make the fish cheap. They thought so; and 
they did not consider that the right to fish (and they 
were fishermen, and knew their business) within the 
three miles was any compensation for that. And the 
remonstrance was made at the time, and it was ear- 
nest. The men went to Washington to enforce it. 
While men dealing in fish remonstrated against this 
concession, the officers of the British Crown, who were 
responsible, and whose constituents were fishermen 
and fish-owners, along a certain line of the Provinces, 
were contending earnestly for the treaty, as beneficial, 
absolutely, to the Provinces. 

Well, it has been said that they knew all the time 
that there was money to be paid. They knew no such 
thing. They knew there might or might not be money 
to be paid, because this tribunal does not sit here to 
determine only the quantum that the United States 
shall pay, but first and foremost to determine whether 
anything shall be paid, and as to that, these ofiicers 
of the British Crown could not pass any judgment. 
It certainly has abundantly appeared in this case, 
that the exportation of fish into the United States, 
and the value of the fish here, has risen and fallen 
steadily, and almost uniformly, with the right of free 
trade, or the obligation to pay the duty. From 1854 
to 1866, when there was free trade in fish, and we had 
the right to fish where we pleased, and they had free 
trade, and sent their fish to the American markets, 
immediately their mackerel fishery increased in 



420 RICHARD HENRY DANA, JR. 

value. Their boat-fishing, instead of being a matter 
of daily supply for the neighborhood, developed into a 
large business. The boats were owned by merchants, 
large quantities were shipped from them, and the 
business increased twofold, threefold, tenfold, as one 
of their own witnesses has stated, stimulated by the 
free American markets. I am reminded that the wit- 
ness said it had increased an hundredfold. Your 
Honors will perceive my moderation in all things. 
The witness to whom I refer is the fellow citizen of 
our friend the Premier of the Island, Mr. John F. 
Campion, and I think he recognized him immediately 
upon his appearance on the stand : — 

"Q. You say that the number of boats and men engaged in 
the shore fishery have increased; has the catch increased to any 
appreciable extent? A. It has increased to the same ratio as 
the boats. 

"Q. In quite the same ratio? A. Yes. 

"Q. To what extent did you say the number of boats had 
iucreased — 100 per cent? A. I would say that this has been 
the case within the last ten years." 

''One hundred per cent," says Mr. Campion, from 
Prince Edward Island. He says this increase has 
taken place within the last ten years; but he does not 
undertake to define how far that increase began before 
1866, whether it continued in the interval between 
1866 and 1871, and how far it was resumed after- 
wards. But we find that five years after the conclu- 
sion of the Washington Treaty, the boat-fishing had 
increased one hundred per cent; and we know that 
it is the freedom of trade in fish that has made the 
boat-fishing of those islands; that has brought about 
their increase in size, which every witness has testi- 



HALIFAX FISHERY COMMISSION 421 

fied to who has been asked the question. I do not 
know whether my learned friends have asked the 
question or not, but we have asked it, and it hav- 
ing been testified to by two residents there, Mr. 
Hall and Mr. Myrick, and the counsel for Great Brit- 
ain, having had ten days allowed them to bring 
rebutting testimony, brought none, we may therefore 
consider that matter as settled, that their growth 
has been largely in boat-fishing, — in the number 
of boats, the number of men employed, the quantity 
of the catch, and the amount of capital invested, 
— and that an examination will show that it is to 
the freedom of trade in fish that they owe it 
entirely. 

I will read a few words to your Honors from Mr. 
Hall's testimony, who has had very large experi- 
ence, living — or if not living, doing business — 
on the northern part of the bend of Prince Edward 
Island. 

Then we have the testimony of Mr. James R. 
McLean of Souris, P. E. I., called by the other side, 
and coming from the strongest point in favor of com- 
pensation, that is, the bend of the Island. 

There has been put into my hands what may be 
called an "account stated" on this subject of the 
balance between what is gained by the Provinces 
by the removal of the duties, and what we gain by 
the extension of our right to fish. The principle on 
which it is made up is most unfavorable to us. I do 
not think it is a sound one; but some persons may. 
At all events, it is the most unfavorable to us : — 



422 RICHARD HENRY DANA, JR. 

Great Britain 

To United States, Dr. 

To saving of duties on fish and fish-oil for 12 
years, averaged from the returns of '74, '75, 
and '76, from Appendix O $4,340,700.00 

Cr. 
By value of mackerel caught within 3 miles of 
coast for 12 years, at $3.75 per barrel, allowing 
one-third to have been taken within 3 miles of 
the shore, and assuming the catch for each 
year as equal to that given in the Port Mul- 
grave returns for 1874 (63,0783/^ bbls.). . .$1,046,177.50 
Balance due United States $3,394,522.50 

We were obliged to take the Port Mulgrave returns 
for the year 1874, because, as your Honors will recol- 
lect, nothing could extract the returns for 1875 and 
1876 from the hands of the British counsel. No words 
of advice, no supplication, no bended knees, — no- 
thing could get from them those returns, so favorable 
to the United States; and we took the returns of 1874. 

But, supposing it to be true that the exporter does 
not pay all the duties, — of course nobody believes 
that he pays nothing; but give him the fairest pos- 
sible chance, supposing he pays one-quarter, and the 
consumer pays three-quarters ; the result then is that 
against $946,177.50 credited to Great Britain, we put 
one-quarter of the United States duties remitted, 
$1,085,175, and it leaves a balance of $138,997.50 in 
favor of the United States. 

So that, bringing this matter as far as statistics can 
bring it, getting the value of the fish in Prince Ed- 
ward Island, irrespective of the labor put upon it 
afterwards, assuming one-third of the fish to be caught 



HALIFAX FISHERY COMMISSION 423 

within the three miles, and to be of equal value with 
those caught outside, which certainly is not true; and 
supposing that of the duty of two dollars a barrel, 
only one-quarter is paid by the exporter, still the 
balance remains in favor of the United States. If, 
gentlemen of the Commission, such is to be the mode 
of treating this subject, by taking values, and bal- 
ancing one against the other, that is the result. 

I do not suppose, myself, it is possible to arrive at 
any satisfactory result by any such close use of sta- 
tistics, on the other side or on ours. But a few general 
principles, a few general rules for our guidance, cer- 
tainly are to be found in all this testimony and in all 
this reasoning. You have the United States able to put 
on what duties it pleased. You have its actual duties at 
two dollars per barrel, substantially prohibitory, which 
everybody said was prohibitory, except those deeply- 
instructed political economists who came here with 
the impression that some good friend paid the duties 
for them, to enable them to get into market on equal 
terms with everybody else. That you have with cer- 
tainty. Against that, you have the most speculative 
opinion in the world; and that is as to the value to 
us of a franchise, or a faculty, or a privilege, or a 
liberty, to pursue the free-swimming fish of the ocean 
a little farther than we ordinarily pursue him, with 
every vessel of ours coming into competition with 
fishermen from boats, who have every advantage 
over us, and to ascertain the value of that franchise, 
privilege, faculty, or whatever you may call it, irre- 
spective of all the capital or industry that must be 
employed in its exercise. 

I came here with a belief much more favorable to 
the English cause, — I mean, as to what amount, if 



424 RICHARD HENRY DANA, JR. 

any, Great Britain should receive, — than that with 
which I leave the case. The state of things that was 
developed was a surprise to many; the small value of 
the extension of the geographical line of fishing to our 
vessels, — I mean, to vessels such as we have to use, 
— to the people of the United States, and the certain 
value that attaches to the Provinces in getting rid of 
duties, has given this subject an entirely new aspect, 
and has brought my mind very decidedly to a certain 
opinion; and I am not instructed by my government 
to present any case that I do not believe in, or to ask 
anything that we do not think is perfectly right ; and 
the counsel for the United States are of one opinion, 
that when we ask this Commission to decide that 
there is no balance due to Great Britain, in our judg- 
ment, whatever that judgment may be worth, it is 
what justice requires the Commission should do. 

I have finished what is my argument within the 
time which I intended last night; but, Mr. President 
and gentlemen, I cannot take leave of this occasion, 
and within a few days, as I must, of this tribunal, 
without a word more. We have been fortunate, as 
I have had the pleasure to say already, in all our cir- 
cumstances. A vulgar and prejudiced mind might 
say that the Americans came down into the enemy's 
camp to try their case. Why, gentlemen, it could not 
have been tried more free from outside influence in 
favor of Great Britain, had it been tried in Switzer- 
land or in Germany. This city and all its neighbor- 
hood opened their arms, their hearts, to the Ameri- 
cans; and they have not, to our knowledge, uttered 
a word which could have any effect against the free, 
and full, and fair decision of our case. We have had 
the utmost freedom. We have felt the utmost kindli- 



HALIFAX FISHERY COMMISSION 425 

ness everywhere. The counsel on the other side have 
met us with a cordiality which has begun friendships 
that, I trust, will continue to the last. I can say, in 
respect to my associates in this case (leaving myself 
out), that America has no cause to complain that her 
case has not been thoroughly investigated by her 
agent and counsel, and fully and with great ability 
presented to the Court; and I am certain that Great 
Britain and the Dominion, represented here by an 
agent from the Foreign Office, devoted to the work 
before him, assisted by the constant presence of a 
member of the Dominion government, largely ac- 
quainted with this whole subject, and with five coun- 
sel, one from each Province of the Dominion, all 
capable, all indefatigable, with knowledge and skill, 
cannot complain that they have not been fully and 
ably represented. But, after all, the decision, the 
result, depends upon you three gentlemen who have 
undertaken, two of you at the request of your respec- 
tive countries, and His Excellency at the request of 
both countries, to decide this question between us. 

It has been said, I have heard it, that your decision 
will be made upon some general notion of what, on 
the whole, would be best for the interests of the two 
countries, without much reference to the evidence 
or to the reasoning. Mr. President and gentlemen, 
we repudiate any such aspersion upon the character 
of the Court. We know, and we say it in advance, 
not that we hope this tribunal will proceed judicially, 
and decide in accordance with the evidence and the 
weight of reasoning, but that we cannot allow our- 
selves to doubt it. We may venture to congratulate 
your Honors and your Excellency in advance, that 
when this decision shall have gone out, whether it 



426 RICHARD HENRY DANA, JR. 

give pleasure or pain to the one side or the other, the 
question will have been decided upon those prin- 
ciples which it is manifest the treaty determined it 
should be decided upon, not from some local or na- 
tional view of policy for the present or future; not 
for the sake of what some persons hope may by-and- 
by result in something better than the present treaty; 
but that you will have confined yourselves to exactly 
what the treaty asks and empowers you to do, — to 
determine what is now the pecuniary result of the 
contrasted articles of the treaty. On such a determi- 
nation of the controversy, whatever may hereafter 
follow from it, each of your Honors will know that 
you have been governed by principle, and by that 
strict rule of conduct which alone can give a man 
peace at the last. 



LETTERS FROM A FATHER TO A SON 




/^■(7l ^H 3 Oi^ c ji 



XVI 
LETTERS FROM A FATHER TO A SON 

Note by the Son 

One problem, ever old and ever new, taking each generation 
substantially unprepared, is the treatment of a son by his 
father. Of course, each new father ought to be prepared, but 
rarely is he. WTiat father, having brought up a family with 
boys, has not wished in the retrospect to have corrected mis- 
takes? A father who feels otherwise is pretty surely a bigot to his 
own past. I suppose one explanation for this state of unpre- 
paredness is that few realize the real psychological crisis there 
is in early childliood. Again, the father is usually preoccupied 
in earning the support of his wife and coming children, in mak- 
ing a home, in establishing his own career and laying the foun- 
dations of hoped-for success in hard work. 

Besides that, the problem is not a simple one. It is many- 
sided. A father who thinks he has solved it with his first son 
finds it far from solved when he applies his first theory to a 
second boy; and the poor father may have to doubt all his the- 
ories when he comes to the sixth child, if he be so happy as to 
have six. 

The old woman who lived in the shoe, had, to be sure, but one 
solution for all, and that is the humor of the rhyme; but had 
she taken her multifarious task thoughtfully, she would have 
found that the forty-second, if that is the number with which her 
children stopped, would have given her wearied brain a new task. 

Complicated as the problem is as applied to different boys, 
there are yet some general principles of pretty universal appli- 
cation, which are only too often overlooked. Anything, there- 
fore, that will aid a father in solving such problems is worth a 
sacrifice of personal feelings and the exposure of private failings 



430 RICHARD HENRY DANA, JR. 

by a son who owes so much of what he is not and pretty nearly 
all he is, to the wise treatment by his father. 

My father's first four children were daughters. On the birth 
of the second, his journal shows how he philosophized himself 
and his wife into a state of content; but says, nevertheless, "I 
should like to train up a son." As a preface to these letters to 
me, I have decided to show what his idea of "training" was; 
and the more am I led to take this course by the fact that I 
have told several perplexed fathers, who came to me for advice, 
the story of my father's treatment of me, and in every case with 
signal profit, — more than one father having thanked me with 
tears in his eyes for the reclamation of his son's confidence and 
aflfection, brought about by adopting a similar course. Also 
this will show a side of my father not to be seen in the Biography 
or Speeches. 

At the tender age of eight, I exhibited traits such as have led 
many a boy, less fortunate in his father, to the career of a criminal 
and outcast. At this time, I played chiefly with boys from one 
to two years older than myself, and in justice to my parents' 
care and forethought, I should add that they were sons of most 
estimable persons. I had such pride and delight in being taken 
into their circle, that I stood ready to repay this mark of esteem 
by utter loyalty to their wishes. 

Playing fireman with a garden water-barrow, such as was 
used in those days, for an engine, we wanted some sign of office, 
which we thought should be swords; and we could use these 
swords also, in those ante-bellum days, playing soldier, but for 
the latter purpose we wanted, above all, a gun. We found that 
a neighbor had some brass stair-rods not then in use, which we 
could convert into swords, and also a shotgun, with powder-horn 
and percussion-cap box, all kept in the L of his house. These 
we longed to possess, the latter for shooting birds as well as for 
parading and drilling, to say nothing of satisfying a craving to 
possess something so important and manlike. I well remem- 
ber how it was suggested that I should do the breaking ^ and 

^ Lifting a latch in order to enter by a door for an unlawful pur- 
pose is " breaking." 



LETTERS FROM A FATHER TO A SON 431 

entering, and how flattered I felt at being chosen for the task. 
We all went into a dense copse of fir trees near the house to be 
looted, and I, leaving the others behind, crept forward along the 
ground, under cover of the branches, until in plain sight of the 
L where the coveted things were kept. Watching each window 
and seeing no one in sight, I got up and boldly sauntered along 
over the short intervening space, lifted the latch, opened the 
door, entered, and soon came back with the brass rods and some 
bright colored chemicals in glass bottles. These latter had fasci- 
nated my eye. I had seen Professor Horsford kindly entertain- 
ing a party of children with experiments in chemistry. He 
brought forth wonderful colors from simple mixtures, and told 
of the marvels that could be produced by chemicals. The chem- 
icals which had caught my eye were not exactly the same he had 
used, but they were as bright in color, and brought to the imagi- 
nation vague but exciting possibilities of making gunpowder 
perhaps, and of I hardly know what else. 

Laden with this booty, I was praised for my courage and 
called a "brick." This stimulated me to fresh venture, and a 
few days later, following the same tactics from the same copse, 
I returned to my companions with the longed-for gun, powder- 
horn and cap-box, which we concealed beneath the trees until, 
under cover of darkness, we got them to the hiding-place in the 
shed of the house of a particeps criminis. Some week or so later, 
we learned that the owner was making inquiries among his 
neighbors about the gun, and that the boys of the vicinity, in- 
cluding ourselves, were suspected. I took the powder-horn and 
sunk it in a ditch to avoid detection. In all this I felt no guilt; 
there was an exhilaration, a suppressed excitement, a sense of 
power in the doing. The only uncomfortable feeling I then 
experienced was fear of ultimate detection, which, however, I 
thought remote. Of course, we all promised not to betray one 
another. 

The hardest trial came when I was questioned by my father, 
who had been told of the loss and the suspicion attaching to our 
"gang." Here I did feel guilt. My father had always trusted me, 
and instructed me to tell the truth at all hazard. However, 



432 RICHARD HENRY DANA, JR. 

though I hated to do it, though it gave a wrench to my heart 
which I distinctly recall to this day, I shielded my fellow thieves 
with so confident a manner and so straight a look of the eye, that 
my father did not doubt my word. No thought crossed my mind 
of shielding my confederates by false accusation of myself, as 
does the Figlia di lorio of d'Annunzio. It was only a question of 
standing by our compact of secrecy, or telling the whole truth 
in detail. Nor could I have succeeded by confessing my part 
alone and withholding the names of the others, as Harry did in 
"Daisy Chain." It was known who were my constant and, at 
that time, only playmates, they had been seen with me near the 
locus and about the time, and they had possession of most of the 
articles. Soon after, I forget just how, my companions were 
found out. They confessed all, and I was brought to book as 
well as they. 

Here was just cause for moral indignation. I had not only 
stolen, but had lied with a straight face to a trusting and devoted 
father. Now, then, what course should this father pursue? On 
account of the very intensity of his feelings, he decided to wait. 
He followed the precept of the Koran, — no judge should settle 
a matter in anger. Some hours later, he called me into his study. 
What he had been doing before I came in I do not know, but I 
believe he had carefully thought it out, and I doubt not, judging 
from his habits, gone on his very knees in a prayer for help and 
strength and guidance, to be at his best in this crisis of his boy's 
life. When in his study, I was told to sit down. He kept on writ- 
ing for some fifteen long minutes, giving me time for reflection. 
Then he turned from his upright desk at which he had been 
standing, and spoke quietly, slowly and seriously. To my sur- 
prise, instead of fiery wrath, which my school-life had led me to 
expect, he began with some words of appreciation, saying he had 
observed my efforts to control my temper, my affection for and 
obedience to my mother, what he believed to be my real, under- 
lying, good qualities, which, as he told them, were more than I 
had ever recognized in myself. Then he spoke of what he hoped 
for me, his only boy, the only grandson of his father, and of the 
characteristics for honor, integrity and truth in my ancestors. 



LETTERS FROM A FATHER TO A SON 433 

Then he showed sympathy for my special temptations in this 
case; how he understood I had been influenced by older boys 
and that I had felt obliged to stand loyally by them. This was 
followed by calm yet strong reproof, but of a kind that left open 
the door of hope. He impressed on me the seriousness of what 
I had done. He showed how it was my duty to refuse to be flat- 
tered into wrong by other boys, how to show my pluck and cour- 
age by standing out for what was right and true, and not by 
doing and standing out for what was wrong and false. Then he 
spoke of his disappointment in my "falsehood" to him person- 
ally. I noticed that he did not call it a "lie," though it was one. 
He did not shelter a harsh word behind the proverbial "spade." 
He then asked me to speak for myself. So much had he himself 
said for me that I had nothing to add. I was reduced to tears of 
contrition. His patience, love, appreciation, over-appreciation 
of my good points, his sympathy and consideration, in this one 
interview, raised in my little soul a reciprocal love and devotion 
which made my father, from that day, my close friend and 
admired confidant, for the rest of his life. 

This did not work at once a complete reformation, as I shall 
show. I still had faults to overcome and failures to repent of. 
The next year, during my father's absence on a trip round the 
world, I got into a scrape and suffered a gentle whipping, some 
mortification and, worst of all, the shame and regret of bringing 
tears to the eyes of a dearly beloved great-aunt. Yet, withal, 
my father's treatment gave me a fidelity to him, a desire to 
please him, to realize his hopes, that served as an underlying 
motive which in the main was supreme. To him at least I was 
loyal, though far from fulfilling all his wishes for me. Judging 
from this experience of mine, I believe that many a lad has gone 
wrong, not from love of wrong itself, perhaps even without the 
consciousness of being bad, but because his love of adventure, 
of exercising pluck, ingenuity and resourcefulness, and his loy- 
alty to friends, have been accidentally determined in a wrong 
direction, perhaps for lack of higher ideals presented in a way to 
attract. This experience of mine has given me a deep interest 
in Judge Ben B. Lindsey's successful dealing with young delin- 



434 RICHARD HENRY DANA, JR. 

quents in Denver, in the George Junior Republic, in the methods 
of Miss Alice Freeman at Wellesley, and of Secretary BoUes and 
Dean Briggs, and in the new plan of students' council now being 
tried at Harvard. Let me add, for fear of being misunderstood, 
this "dealing" and these "methods" do not mean mere lazy len- 
iency, but the inspiring with high ideals, a task much more diffi- 
cult, as it is in the end more profitable, than punishment alone. 
Nor do I believe that punishment should always be omitted in 
the scheme of training a son. 

Though, as I have already said, often whipped at school, only 
once did father himself resort to corporal punishment, and that 
chiefly, I believe, that the sense of force might be behind to help 
the weak endeavor. The circumstances were as follows. My 
parents being both away for the day, my elder sisters assumed 
an authority not delegated to them either expressly or by impli- 
cation. In some small matter, not involving anything in itself 
wrong, I refused to submit, and as I continued to oppose what 
I thought to be both unauthorized and unreasonable commands, 
they called the servants to assist. I was then just under nine 
years of age. Finding myself surrounded by this " force majeure," 
interfering with my liberties, I rushed to my father's wardrobe, 
got his long sabre and his Colt's revolver, which was loaded and 
capped, and, cocking the hammer, I aimed the pistol at my ene- 
mies and held them at bay all the afternoon. As the daylight 
faded, my courage began to fade with it. I wished myself well 
out of the situation my pride would not let me abandon. I knew 
my father would soon be coming home, and before long I heard 
the front door open and shut, and his step and voice in the hall. 
To him I surrendered, side-arms and all. He refrained from 
words, other than to tell me to take my supper in my bed-room 
alone. An hour or two later he came up and talked the whole 
matter over. He had given himself, as well as me, time for reflec- 
tion and calm. We came to the conclusion (I say "we," as I 
was consulted) that I had better be punished. When the blows 
came, they were real and hurt; but there was no anger, open or 
concealed, none of the "It hurts me more than it does you," 
and no degradation. I had pleaded guilty and joined in the 



LETTERS FROM A FATHER TO A SON 435 

sentence. As part of the punishment, I also apologized to sisters 
and servants, for subjecting them to fear and danger. 

Bringing to bear sympathy and appreciation in dealing with 
a son is apparent enough, but what may escape the reader's 
notice is the giving of ample time. How many a parent has 
"meant well, tried a little, and failed much," as the pathetic 
epitaph near Lakewood reads, because he has been too "busy," 
forsooth, to give enough time and thought to the most important 
business of his life. The faults and waywardness of a child are 
so annoying, they come at such inconvenient times, they are 
such interruptions, they seem to "pester" one so, that the in- 
stinct is to brush them away like a swarm of flies, with some 
hasty words uttered, perhaps, in the presence of others, leading 
to injured pride, self-defense, heated argument, and estrange- 
ment. What is needed is the assignment of time, at an appro- 
priate place and alone with the child, without hurry or interrup- 
tion, and as much thought as is required, let us say, to suppress 
ravages of gypsy moths or to destroy the breeding places of 
mosquitoes. 

When nearly ten years of age, I had the great privilege of 
making some new, delightful friendships, chiefly with Daniel C. 
French, now the famous sculptor, William Brewster, the cele- 
brated ornithologist, John Nichols, the successful and upright 
man of business in New York, and with others less intimate, 
including the two Russells, the late Charles Theodore, lawyer 
and Civil Service Commissioner, and Joseph B., the public- 
spirited, high-minded man of affairs. 

As I grew older, at about the age of twelve or thirteen, my 
father told me those things a son can best learn from his father, 
warning me against picking up what usually amounts to misin- 
formation on such subjects from other boys on street corners, 
and urging me to come to him or the family doctor if and when 
I needed further knowledge, and otherwise to dismiss such sub- 
jects from my mind by keeping it busy with interesting topics, 
whether of work or play. Perhaps such a course was all the more 
natural and easy for him on account of his high ideals of life. 
After his death, I met a close friend of his, living in London, who 



436 RICHARD HENRY DANA, JR. 

had seen him intimately on every visit he had made to England 
This friend said, "I wish to have the pleasure of telling you that 
your father was the whitest soul I ever met." 

Dr. Hamilton Rice, in a recent address before the Harvard 
Travellers' Club, about his last trip among the savages at the 
source of the Amazon and Orinoco, spoke of the good family 
relations of the natives; and, what specially thrilled me, was his 
account of how the father trained his son, and how the son was 
the companion of his father in all his enterprises. In our civilized 
and complicated life, this close companionship is not so easily 
arranged. In our case, there were the claims of two families, his 
father's and his own, living in different places. We were the only 
two well men of both families, so we often had to be separated, 
even in vacation; and when at last I got through my education 
and started with him in the law, as I was the fifth child, he was 
then becoming old and had to go abroad for his health, after six 
months only of that delightful companionship in work. I cannot 
pass over this companionship in work without saying with how 
much deference he, a man of his legal learning and experience, 
listened to every suggestion from his juniors, including myself, — 
nay more, suggestions he courted. 

Out of his busy life, he made opportunities to be with me and 
his other children. He gave time to repeat poetry to us, to ex- 
plain, in his wonderfully clear way, many things natural and 
legal, and to tell interesting and amusing anecdotes at table. 
He contrived to take a long walking trip with me through the 
White Mountains, while I was on a vacation from St. Paul's 
School. Sunday afternoons he read with me. We conned Hor- 
ace's Odes, which were wretchedly presented by my instructor 
at Harvard, we read Milton's "Paradise Lost" twice in full, and 
selected parts oftener, "Paradise Regained," " Samson Agonis- 
tes," much of Bacon's "Novum Organum," some of Coleridge's 
philosophy, Edmund Burke's orations, and other poetry and 
philosophy, interspersed with or followed by most illuminating 
and delightful talks. We frequently read the Second Lesson or 
the Gospel for the day in the Greek, Latin, or French testament. 
As was customary with many men of his own time, he preferred 



LETTERS FROM A FATHER TO A SON 437 

to re-read, dwell on, and absorb some of the best things in liter- 
ature rather than seek for the new, or less good of the old. 

But Mr. Dana's "training up a son" was by no means an 
approach to coddling. On all but stormy days, the children were 
sent out for a short run, usuallj' in the garden, before breakfast. 
He wished his son to be manly and self-reliant. One evening he 
found me reading the "Arabian Nights" into what were for me 
late hours. I had my mind filled with genii and Aladdin lamps 
and a general upsetting of the laws of nature. I believe I was 
about eight years old. He told me to go out for some fresh air be- 
fore going to bed. As I passed down the path, I neared the high 
gate-posts. Each was topped with a large white wooden ball. 
On these balls points of light glittering through the foliage came 
and went, or moved slowly to and fro. Suddenly to my horror, 
instead of balls of wood, they seemed heads of genii, glaring at 
me with flaming eyes and ominous smiles. I slowly backed to- 
wards the front porch, and then, when near enough to be safe, 
turned and ran into the house. My father, seeing the situation, 
ordered me to go out again and conquer my excited imagination, 
and to do it alone ; and alone I walked down the path, passed the 
posts, which had then resumed their teies de bois with flickering 
light, but trembling lest the genii should reappear. I took a short 
run and returned, again alone passed these posts, my misgiving 
eyes glancing from one to the other, but I presume I was more 
.self-reliant from conquering my fears, though I was mighty glad 
to get back safe in the house with others about me. 

I used to sleep in a finished attic room, leading out of an attic 
hall. This hall got its daylight through glass panels in the upper 
part of three doors opening into three attic rooms, one of these 
rooms being unfinished. In this unfinished room was the gym- 
nasium, with its "horse," ladders, side-weights, etc., piles of 
trunks, and open eaves leading to dim distances containing for 
us, when young, dim horrors which even at ten had not entirely 
disappeared when alone at night time or in my dreams. Mount- 
ing the attic stairs bedward, with a lighted candle in my hand, 
as my head came on the level of the floor, I saw, under a bed in 
this attic hall, a man, with boots toward me. Back I turned and 



438 RICHARD HENRY DANA, JR. 

began to descend, not too fast at first; for fear of exciting sus- 
picion and inviting pursuit, I moved as if I had merely forgotten 
something and wished to go back to get it, until I was on the 
second flight down, and then I ran pell-mell into the dining-room 
where the elders were all sitting before the fire, closed the door 
behind me, and told what I had seen. My father said I was grow- 
ing up to be a young man and must not yield to fear; it was prob- 
ably imagination, some bundle or the like under the bed; and 
back I was sent alone, though with the promise of support from 
a rear-guard in case of need. 

Well ! I mustered all my courage, or rather bravado, and went 
back making more than usual noise, stepping heavily like a 
grown person. When my eyes were level with the attic floor 
again, I peered round the corner. There was the bed and the 
floor under it, but no man in sight! I had not even the consola- 
tion of seeing a bundle or anything else that could be taken for 
a man under the bed, not the smallest thing; but this absence 
of anything was not altogether reassuring. What had become of 
the man? As I passed the door of the unfinished attic, with its 
two glaring eyes of upper glass panels, I had a horrible suspicion 
that the intruder had transferred himself into this unfinished 
attic, and might be watching me from these same glass panels; 
nor, after I was inside my own room and had shut the door, was 
I altogether comfortable at the two glass eyes in that door, 
which drew my attention with a fatal fascination while undress- 
ing and in bed, until I fell asleep. 

To this day I feel sure there was a real man under that bed. 
He must have been warned by my rapid descent of the lower 
stairs and taken flight while we were discussing the matter in 
the dining-room. I do not think it can have been all imagina- 
tion, for I have never imagined an object out of the whole cloth. 
There has always been at least a sheet hung near a window and 
flapping in the breeze, or wooden gate-post balls with glittering 
points of light, or some such basis of my boyish fears. 

My father encouraged me to take all the ordinary, small risks 
of games and sports on land and water with all my companions, 
and I had my full share of narrow escapes. There was never. 



LETTERS FROM A FATHER TO A SON 439 

however, any suggestion of extra caution as being the only son 
and grandson, not even after I had been hauled out of the 
Botanic Garden pond where I had been fishing, and had been 
brought home in a wheelbarrow, dripping wet and apparently 
half drowned, at the age of six; nor after I was partly stunned 
and nearly drowned from striking my head on the bottom of 
Glacialis, diving in shallow and muddy water; nor after two 
serious falls from high trees; nor on being hit by stones in one 
of the fights between the followers of Engine No. 1 and of the 
East-Cambridge engine; nor after falling through thin ice while 
skating; nor after some narrow escapes at the great Boston fire, 
even though a cousin was killed by a falling building close to 
where I had just been. 

The same cynic may say: "Oh, yes, this is a clear case of 
neglect on the part of a man absorbed in politics and law!" Lest 
this may be thought, let me quote from Mr. Dana's journal of 
June 3, 1855, showing the real anxiety which he kept concealed 
from his only son, the object of his care. "During the last few 
weeks, we have had unusual sickness and some perils and deliv- 
erances in our household . . . the next day week . . . our dear 
boy, the darling of our hearts, fell from his nursery window, 
second story, to the ground, and although he was picked up and 
found to be in his senses, conscious and apparently unhurt, yet 
for several days we were anxious about him, but by the great 
mercy and blessing of God, he suffered no injury whatever. 
There are two windows to his nursery on that side, one directly 
over the stone steps to the cellar and the other over the soft 
grass. He fell from the latter," 

He urged on me principles of courtesy, nay, chivalry, towards 
women. As to religious instruction, the letters and parts of 
Adams's Life speak for themselves. 

He warned me against any aristocratic tendency or reliance 
on family alone. He said, "Do not be misled by the dear, good 
women at Chestnut Street" (my grandfather's house); and, 
dropping quotation marks, as I do not remember his exact 
words, he continued somewhat as follows. First, as a matter 
of fact, ours is not a great family, though he believed it to be an 



440 RICHARD HENRY DANA, JR. 

honorable one. The Danas of Piedmont, Italy, if (as at that time 
he thought likely) we are descended from them,^ were educated 
men, several having been professors in the University of Turin 
in various generations; but they were not noble, there was no 
"castle," and the town of Dana at the family home was but a 
hamlet. He said that the first settler in this country, Richard 
Dana, and his sons, were but farmers and local magistrates. 
The others in the direct line have, to be sure, been Harvard 
graduates, and have taken part in the struggles for liberty. One 
has been a delegate to the Continental Congress, signed the 
articles of confederation, has been an unaccepted Minister to 
Russia during the Revolutionary War, and was Chief Justice 
of Massachusetts. There were in the maternal lines also two 
colonial governors and a signer of the Declaration of Independ- 
ence; but none on either side has held any really great position. 
There has been no President of the United States, no Cabinet 
officer, no judge of the Supreme Court at Washington. Fully 
half the people you meet, said he, of the old American stock, 
have as much, and many have far more, to be proud of. But 
second, and more important, he told me, is the danger to a 
young man of relying upon what his ancestors have done instead 
of doing things himself. In so far as high character, education, 
and devotion to country in one's ancestors may stimulate a 
young man to imitate their careers and fear, in words that come 
from the very dawn of poetry, "to bring shame on the stock 
of the fathers," these may well help him. It is said, "Blood 
tells"; but as far as that means anything, it means that it tells 
in what the descendants are and do, and not in what they are 
not and do not. In short, a family good name is a blessing or a 
curse, just as we use or abuse it. These may seem platitudes, 
said he. Perhaps they are; but, in the words of the Massachusetts 
Bill of Rights, "A frequent recurrence to the fundamental prin- 
ciples" is "necessary," and, unfortunately, on this subject, only 
too necessary. So many Americans, and in growing numbers, 
are turning good family names into claims of superiority and 

1 For various reasons, the theory of Italian origin is pretty much 
abandoned by the genealogists of the family. 



LETTERS FROM A FATHER TO A SON 441 

submitting themselves to ridicule. I am sure, said he, you will 
not be of this number. 

As to some of the dangers of our times, he taught me to be- 
lieve that science, philosophy, art, literature and the brother- 
hood of man were the glory of the human race ; but luxury its 
debasement. 

So much for precept; but how about example? As I have said, 
Mr. Dana's religious feelings and opinions are pretty well ex- 
pressed in the Life by extracts from his journals and letters, and 
there it is also shown how "punctilious" he was in all religious 
observances. The epithet "punctilious" doubtless would have 
offended Mr. Dana, for all religion had to him a real meaning. 
It was a help and inspiration to his life, and there was, in the 
morning, family prayers, which he kept up with few periods of 
omission, and the grace said at meals, a simplicity and natural- 
ness that were far from anything sanctimonious or formal, 
which he ridiculed and abhorred. He attended church twice 
on Sundays in the earlier years, usually but once in the latter 
part of his life. In Lent he managed to give some time to weekly 
services. Bishop Grafton tells how he, as a young man, was 
impressed by Mr. Dana's stopping on his way to his office, with 
green bag in hand, joining in the morning service or kneeling 
in silent prayer for a few moments. 

In his daily contact with all the household, he set us an ex- 
ample of being most considerate, thoughtful of the domestics, 
and to his wife truly chivalrous. Never have I heard an unkind 
word to his wife, none of the thinly veiled sarcasm, persistent 
arguing, or unfavorable allusions to "women," none of the pain- 
ful laying of grievances before guests, none of the funny stories 
that set wives at a disadvantage, so common, even among those 
classed as gentlemen, in the far too numerous "Bickerman" and 
"Retort" families, both in America and abroad. 

He kept up the romance of married life to the end. Describ- 
ing, "after nearly a year," the return from the marriage journey, 
he writes in the journal ^ : — 

' The journal is headed as follows: "A correct account of all such 
my acts, thoughts and feelings as I am willing to have known to anyone 
into whose hands this may come." 



442 RICHARD HENRY DANA, JR. 

"Those are either vulgar, or weak, or ill-matched persons, 
to whom what is popularly called the ' honeymoon ' is the envied 
part of married life. Confidence, respect, tenderness and devo- 
tion will increase as life goes on, if there is ground to rest such 
sentiments upon, and capability of feeling them in each of the 
persons united. A true man and woman may be and sometimes 
are always lovers. The deference, tenderness, respect and the 
romantic and chivalrous devotion need never fade away. They 
never will between two persons really capable of feeling them 
and calling them out." 

On the birth of their first child, he enters in his journal, June 
12th, 1842: — 

"If ever man had reason to bless God with his whole heart, 
it is I. He has given me the best, the most tender, affectionate 
and faithful, as well as superior and charming wife that man ever 
had. Her life is spared, and He has added to us a daughter." 

At the end of the first year, is found this journal entry : — 

"S. and I are no less lovers than a year ago. This is the true 
happiness of married life, when the fervor, the deferential ad- 
dress, and the sentiment and romance of courtship are not worn 
away. They never need be." 

Five months later, we find : — 

"Great reason for thankfulness. Carried over land and water 
. . . and at last finding my dear home and its dearer inmates 
well and happy." 

Nearly two years after marriage, when his wife walked alone 
out to Cambridge, to render what sympathy and help she could 
on the sudden death of Mr. Washington Allston, is this to be 
found in the journal : — 

"She never looked more lovely to me than when she entered 
that room." 

Soon after, he writes in the journal : — 

"How vulgar and false is the notion that love — romantic 
and sentimental love — ceases with marriage:" and then follows 
more in the same vein as what I have quoted above. 

Journeying to Hartford, Connecticut, he says : — 

"The sail up the river in the boat was most delightful. The 



LETTERS FROM A FATHER TO A SON 443 

site of Hartford, as viewed from the river alone, is quite pictur- 
esque ... it has become a dear place to me. S. fills it to my 
mind. Everything about it is significant of her. Here she first 
saw the light . . . here we first united our love and hopes, and 
here we were united in marriage." 

Hearing praise of his wife's intonation of voice, "the feeling- 
ness of it," also "her manners, the grace she showed in little 
things, her taste in dress," etc., he adds: "How much all this 
delighted me. It was music to my ear and my soul." 

So it goes on in the second volume of the journal. In August, 
1843, returning from a short summer vacation, his wife and 
daughter being still away, he writes: — 

"Was glad to enter my home and see the places made dear to 
me by so many months of happiness and sanctified by the rela- 
tions of husband and father. Dear S., how you do throw a charm 
about all that you move in ! Yet it was solitary and somewhat 
sad." 

And again : — 

"Mrs. Fox sat down and cried when Mrs. Dana did not come. 
Rarely is it that the head of a house attaches a domestic so to 
her that she will cry when she does not return. 'So gentle, so 
lovely, so faithful, so kind!'" 

The next year : — 

" Hartford is full of her to me. ... It is a peculiar, almost an 
enchanted place." 

Four years after marriage, we again find expressions of deep 
sentiment. 

At the end of a four weeks' journey with his wife to Niagara, 
Canandaigua, etc., nearly six years after marriage, is this: — 

"During the last four weeks we have been constantly to- 
gether. . . . We have agreed that we have only to be always 
together to make our sentiment perfect." 

At the end of six years of married life, after reading their let- 
ters written "when we were merely friends," — 

"We can truly say that time works no change in us. Our love 
is as deep (more deep), as romantic, as anxious, as sentimental 
as on those days when romantic love too often ends." 



444 RICHARD HENRY DANA, JR. 

Then, after seven years: — 

"Dear, dear Hartford. . . . Write letter to S. which takes 
until past midnight, and then put it in the office that she may 
get it the next day. . . . How my heart is locked up with hers." 

At the end of eight years, in the third volume : — 

"Reached Wethersfield at 43^, Sarah looking finely and the 
children all well! How much happiness, how many things to tell, 
how many warm friends to sympathize in them all!" 

And so it goes on until the journals end; and the sentiment 
and the tender care do not end with the journals, but keep up, 
even through years of his wife's nervous prostration and illness, 
from which she fortunately recovered, and to the last day of his 
life. 

His tender thoughtfulness of others is perhaps best told in Mr. 
Adams's Biography, in an extract from his journal, showing how, 
after having started on a journey to visit his wife at Wethersfield, 
he got out of the cars at "Framingham," took a train back to 
Boston and went out to Cambridge, thus delaying his journey 
two whole days, including a Sunday (there were no Sunday 
trains then), because he feared to disappoint his little daughter, 
who had expected to go with him, but who, by some mistake of 
the maid, had not had her things packed and been made ready 
in time to join him. On another occasion, at the death of his 
cousin's son, a promising lad of seven, he sat at the deathbed for 
the hour together, to comfort and console the bereaved father. 

As to his sense of fun, and how he enlivened the family with 
anecdotes and witty stories, I may say these stories and anec- 
dotes were never vulgar nor profane. He sometimes made fun 
of sanctimonious people, even of well-meaning clergymen or a 
pompous bishop; but he never permitted jokes on the Bible. 
All his stories would bear repetition before the highest-minded. 
He was once, I remember, immensely annoyed by finding that 
some one had turned one of his anecdotes in a way to make it 
coarse, and had added some indecent touches not in the original, 
and, moreover, had told it as one of "Dana's stories." 

As to his views on aristocratic tendencies which I have related, 
it may be asked how he carried these views out in practice. Some 



LETTERS FROM A FATHER TO A SON 445 

of my father's friends believed him, at times at least, to have had 
such tendencies. Butler made a great point of the "kid gloves" 
in Mr. Dana's campaign against him in 1868. Perhaps my 
father's nearsightedness, his inability to recognize faces readily, 
a certain dignity of carriage that made him seem taller than he 
was, his high ideals of professional life, and his not infrequent 
absorption in thouglit may account for part of this belief; but 
in act as well as in precept, there was at least much of the direct 
opposite in him. Witness his comradeship with the sailors in 
his two years before the mast, his interest in them afterwards, 
even going down to Ann Street to look up his shipmate, Tom 
Harris, when he heard he had come to town, and not waiting 
for Tom Harris to call on him; his attending at the deathbed of 
a former fellow sailor though the poor life had been run out in 
dissipation; his attachment for the poor Kanakas at the hide- 
homes at San Diego; his real affection for "Hope" who called 
him his "Aikane"; his sitting up hours of the night, time and 
time again, at the "Oven" with "Hope" when ill, and the 
struggles he had in getting the needed medicine which saved 
"Hope's" life; and how we find Dana inquiring years afterward 
about "Hope" from a sailor who was returning from California, 
and his expression of delight in his journal at getting a message 
from his dear Kanaka. Then there was Dana's offer to escort, 
"arm in arm," his client, Burns, the fugitive slave, on the walk 
from the Court House to the United States cutter that was to 
take him back to Virginia. As to the "kid gloves," taking this 
literally, few men of his means dressed so simply or cared so 
little for such things. 

When I was going abroad, with many letters of introduction, 
my father warned me against the idle, fast set in society, drawing 
a clear distinction based upon character and achievement. In 
his journals, letters and conversation, it is clear that he very 
much appreciated the sort of courtesy, consideration and public 
spirit one sometimes finds in the old families. North and South, 
at home and abroad. So far as an aristocratic tendency meant a 
worship of old families as such, Mr. Dana had none of it. In his 
journal, I find this entry: — 



446 RICHARD HENRY DANA, JR. 

"Saratoga, July 23, 1850. ... In p. m. long conversation 
with Sedgwick [Theodore] and Slidell [John] ^ about their com- 
bination of social exclusiveness with political radicalism." 

His interest in all the affairs of his children was intense. In 
the midst of hard and exciting professional and political work, 
he would ask about his daughters' partners at the dance, or 
would remember and inquire about some of their classmates, 
especially the talented ones, what marks they received, what 
bright things they said. 

He was a man of sweet disposition. I have never seen my 
father lose his temper. I have heard him express great moral 
indignation at what seemed to him mean or selfish; but in the 
family, he had a certain humility which was striking when one 
considers the courage and persistency with which he fought his 
cases in court and took up and urged unpopular public causes. 
If corrected (and I suppose every large family has its mentor), 
he would submit most graciously, even on subjects on which 
he had a right to pride himself for his knowledge, as, for example, 
in rhetoric. I remember my father's telling me, some few years 
after his experience as a member of the Massachusetts Legis- 
lature, as we were walking past the State House, that he feared 
he sometimes lacked charity. He believed he had it for children 
and for the weak and unfortunate; but that the motives that 
governed many successful members of the Legislature, or by 
which they governed others, were so small and sordid, that he 
often showed his disgust or indignation in a way that was cer- 
tainly not politic (for that he cared little if his duty was clear). 
He feared he had sometimes weakened his legitimate influence, 
and perhaps, after all, said he, "it was not altogether Christian." 
He said, in substance, that many of these men meant well, but 
had been brought up to low ideals of politics. As things were, 
they found that through "log-rolling," trading of appointments 
and the like, were the chief roads to success, and that along these 
roads were travelling some of the very men they had been taught 
to admire. 

^ Of New Orleans; well known in connection with the mission of 
Mason and Slidell in the Trent affair in 1861. 



LETTERS FROM A FATHER TO A SON 447 

A relative of my mother's, a woman of much discrimination, 
once said to me, "On my first visit at your father's house, I was 
deeply impressed with his intellect; making a second visit, his 
courtesy was what struck me most; and on the third, as I had 
come to feel the deeper things of life, I valued most the religious 
side of his character." 

Such were some of the methods, both in precept and practice, 
with which he tried to "train up a son." 

As to my bad spelling, so often referred to in these letters, and 
which caused my father so much trouble, I may say that it was 
not the fault of the public schools which I attended, where drill 
in spelling was most thorough, nor was it caused by my neglect, 
for I stood occasionally at, and never very far from, the head 
of the class. 

Finally, may I ask the reader to note, as he sees the following 
letters, the kindness with which rebuke is administered, the fair- 
ness, the want of exaggeration of faults, the readiness to admit 
he was in error, the encouragement, the appreciation and the 
praise and the personal interest that they manifest. 

Indeed, there is so much of appreciation and praise in these 
letters that I should never dare to be the one to give them to the 
public, were it not that I trust every considerate reader will 
remember my point of view, namely, to show a father's training 
of a son. This has led me to run the risk of being criticised for 
publishing so much in praise of myself; — remember, I am show- 
ing a father's love and cheer. 

What I have painted, I have painted not to the eye alone, 
but to the inward vision. 

R. H. D. 



448 RICHARD HENRY DANA, JR. 



The Letters 

Shakespeare's House 
Stratford upon Avon, Aug. 8, 1856. 
My dear little Richard, — 

You are too young [five years old] to value it now; 
but, if God spares your precious life, you may, one 
of these days, look back with pleasure upon a letter 
addressed to you, by your father, from the very 
house in which the great Shakespeare was born. 
Your affectionate father, 

RicHD H. Dana, Jr. 
Master Richd H. Dana, the 3rd. 

Sunday evening [1865]. 
Dear Richard, — 

I want you to return my list of misspelt words, cor- 
rected. I also enclose one now, for you to correct. 

Dear R., I wish you to take more pains with your 
letters. They are very good in their matter and sub- 
stance, but you are not only very careless in spelling, 
but in beginning sentences with capitals and in mak- 
ing sentences in any way. You are now fourteen 
years old, and should be able to write a letter which 
can be shown to anyone. 

Write slowly, and correct your own errors. 
Good-bye, my dear son. 

Your affectionate father, 

R. H. Dana, Jr. 

Cambridge, Sept. 10, 1865. 
My dear Boy, — 

I am answering your letter to your mother, which 



LETTERS FROM A FATHER TO A SON 449 

I was glad to find you wrote to her, at once, on reach- 
ing school. . . . 

We did have a pleasant time, those days of walking, 
did we not? And the scenery was so grand, and the 
curiosities so interesting, — the Pool, Flume, Profile, 
Basin, Profile Lake, and Echo Lake. I hope you will 
long remember them. 

I do all I can afford to do to improve your health of 
body and your powers of mind. On your part, you 
must make return by attention to your studies and 
conduct, to make yourself a virtuous and well-edu- 
cated boy. I shall look anxiously to your monthly 
report, to see how you stand in deportment as well as 
in studies. 

The thing you have most to guard against is vio- 
lent and pettish outbreaks of temper. 

... At Mr. V. R.'s [P. S. Van Rensselaer's], I 
spent four days very pleasantly. They have a beau- 
tiful place, maintained with a good deal of wealth 
and style. 

My kind regards to Dr. Coit and his brother, and 
to the other gentlemen. 

Write often to us, but pray take more care with 
your letters. Spell them better, and write a better 
hand. Good-bye, 

Your affectionate father, 

R. H. Dana, Jr. 

Richmond, Va., Oct. 1, 1865. 
My dear Boy, — 

I suppose you did not know of my purpose of 
visiting Virginia, until I had sailed. The cold I had 
during our walk held on so that I was obliged to get 
a vacation. I sailed from Boston, Sept. 23 (Saturday), 



450 RICHARD HENRY DANA, JR. 

in a steamer, and arrived at Norfolk, Va., Tuesday, 
26th. 

I saw Fortress Monroe, the Rip-Raps, Newport 
News, the place where the Rebel ^ ironclad Merri- 
mack sank our wooden frigates Cumberland and 
Congress, and she was attacked and driven off by the 
little Monitor. 

At Norfolk, I visited the Navy Yard, which is 
almost entirely in ruins, and where are wrecks of our 
ships-of-the-line Pennsylvania, Columbus, and Dela- 
ware, and our old frigate United States. All these 
wrecks are to be restored. 

All the waters from Norfolk to Fortress Monroe 
are one large harbor, or roadstead, — making one 
of the grandest in the world. With free labor and free 
institutions, Virginia will become a great state. ^ 

From Norfolk I went to Richmond, up the James, 
in a steamer. I passed Jamestown, the oldest settle- 
ment in the United States, but long ago abandoned, 
and now marked by a ruin of a church. ^ I passed, 
also, the points of military interest in McClellan's 
campaign of 1862, and Grant's of 1864-5, — Malvern 
Hill, Drury's Bluff, Dutch Gap, Deep Bottom, Ber- 
muda Hundred, Harrison's Landing, City Point, etc. 

Richmond has a commanding and beautiful situ- 
ation, at the falls of the James, on seven hills, and 
is a handsome city. . . . 

' Not believing the states had a constitutional right to secede, their 
action could be considered only in the light of a "rebellion," and to be 
justified only in case there was good cause and ultimate success, as with 
the rebellion of our colonies against Great Britain. 

^ Census reports on growth in population and wealth of Virginia 
have now fully substantiated this prediction. 

" Restored in 1907. 



LETTERS FROM A FATHER TO A SON 451 

I took a letter from the Secretary of War to Gen- 
eral Terry, (the capturer of Fort Fisher), now com- 
manding the Department of Virginia, and he sent 
his Chief of Staff out with me, and I visited the works 
of the Rebels and of our own troops around Richmond, 
and some of the battle-grounds, — Newmarket, Deep 
Bottom, Flussel's Mill, Derby town Road, etc., etc. 
I should like to give you a full description of the way 
the forts, bastions, bomb-proofs, picket lines, etc., 
are built, and the huts of the soldiers. 

I next went to Petersburg, where the great fighting 
was done, and the closest siege, the capture of which 
caused the evacuation of Richmond. The works here 
were close together, in some places the picket lines 
not over one hundred feet apart. I saw here all the 
chief places of historic interest. 

In Richmond, I saw the deserted halls of the Rebel 
Congress, looking forlorn enough. General Terry 
occupies Jeff Davis's Presidential Mansion. 

The sight of all these things makes me deeply 
grateful for the success of our arms in this dreadful 
struggle. 

At Christmas I will show you the plans, and ex- 
plain more to you. In the mean time, go on with your 
good resolutions and good conduct, and be sure of 
the affection of your father. 

R. H. Dana, Jr. 



Cambridge, Oct. 25, 1865. 
My dear Boy, — 

Let me congratulate you. Your last letter to me 
had not one error in spelling, and was carefully writ- 



452 RICHARD HENRY DANA, JR. 

ten. It gives me great pleasure to see you take such 
pains. 

I did not mean that you should write oftener, for 
I know you have but little time. I only meant that 
when you wrote, you should take pains. . . . 

You were right about the corrections. They were 
in a letter that came while I was at Richmond, and 
I had not seen them. 

I am glad you told me about the Isthmian badge. 
I allow for those accidents and embarrassments boys 
sometimes get into about paying and subscribing. 
So long as you make it understood that you are 
neither afraid nor ashamed to be poor, and to deny 
yourself or refuse what many others may do, and tell 
me frankly when you doubt about what you have 
done, or when you have got into an expense without 
intending it, I shall be satisfied. 

I enclose your report for September. It is very good 

indeed. Go on so; I shall not ask whether you are 

first, second, or third. That is relative. I wish to see 

you 9, 1 but ought to wish every other boy was 9 also. 

Good-bye. 

Your affectionate father. 

Rich H. Dana, Jr. 



Nov. 1, 1865. 
My dear Boy, — 



I enclosed the pickers for your sled. 
Your letter of Sunday gave us great pleasure. We 
are rejoiced to find that you have joined the Confirma- 

1 Highest mark. 



LETTERS FROM A FATHER TO A SON 453 

tion Class. If you go on now, and form religious 
habits, at this critical and turning point of your life, 
you may pass through the temptations and trials of 
youth with a pure life, a good conscience, a sound 
body, a well-improved mind, and with the favor of 
God and men. If you do not do it now, the chances 
are greatly against a youth's ever becoming religious. 
He is then left to all the worst influences of the world, 
without the aid of God's grace. 

Your last letter had but one mistake. You spelt 
amount with two m's. 

Your affectionate father, 

R. H. Dana, Jr. 



Cambridge, Nov. 12, 1865. 

My dear Boy, — 

Your last letter was carefully written, in a good 
hand, which I am very glad to see. I am glad you 
persevere in writing carefully. You have but one bad 
error in spelling. 

I have not yet received your report for October. 
It gives me pleasure to know that you like Latin. 
I wish to see you a good Latin scholar. 

Your box of tools came safely and is in the attic. 

Dr. Coit spoke kindly and favorably of you. He 
says he never urges or presses boys to be confirmed, 
and never makes a difference in favor of communi- 
cants over others, in the way of favors or kindness, — 
for there must be no premium offered. A boy must 
be confirmed on conviction, and deliberately, so that 
it may last and take deep root. He was the more 



454 RICHARD HENRY DANA, JR. 

pleased to see you interested in the subject, as it was 
purely voluntary. 

You remember Mr. Worcester, that old gentleman 
who lived next to Mr. Longfellow, by the pond. He 
died last week, and was buried from the Church. He 
was eighty-one years old, and was distinguished for 
his great Dictionary and small books on history 
and geography. 

Good-bye. 

Your affectionate father, 

R. H. Dana, Jr. 

The late elections have all gone in favor of the 
Republicans. The half-loyal Democrats are thor- 
oughly put down by the people. 



Cambridge, Nov. 19, 1865, 
My dear Son, — 

I enclose your report for October. It is all good 
except the elocution. Is the elocution low because 
you forget the words, or because you do not speak 
well? Let me know. I must try to help you when you 
come home. 

... I had to deliver a lecture at Gloucester. I 
have a lecture which I deliver this year on "American 
Loyalty." 

... When you come home to Christmas, perhaps 
we can let you go to a grand oratorio, like the Mes- 
siah. It will give you new ideas of music, — its 
majesty and power. 

We shall all be glad enough to see you, when you 
come for vacation. I hope to see you improving in 



LETTERS FROM A FATHER TO A SON 455 

all that goes to make the good, conscientious, kind, 
and intelligent man. 

Your affectionate father, 

R. H. Dana, Jr. 

Sunday evening, Feb. 18, 1866. 

Dear Richard, — 

No one has written you this week, so I write you, 
that you need not think yourself neglected. 

I was glad to see you go off in good heart, and to 
hear that you got back in good order, without loss, 
and were returned to your work encouraged as to 
your studies. Especially do we take comfort in the 
thought and time you give to religion, and the efforts 
you make to lead a moral and upright life. That is 
the only thing to be depended upon. Everything 
else may fail. Friends may — and will — die, money 
take wings, health fail, but the favor of God and con- 
sciousness of honest efforts to do right will give a man 
peace at the last. 

Your grandfather [R. H. Dana, Sr.] has been very 
much depressed by Aunt Sarah's death, and has 
suffered from a heavy cold, so that we all felt anxious 
lest he should be called to follow her. But he has been 
steadily improving for the last three or four days, and 
we all feel encouraged about him. Aunt Betsey 
appears beautifully. She is so tranquil, and so re- 
signed, and so full of hope and religious trust, that 
it is consoling to see her and talk with her. She has 
been a truly self-sacrificing and devoted woman all 
her days. She has done everything for me and Aunt 
C. and Uncle E.^ from our childhood. 

1 My father's sister and brother. 



456 RICHARD HENRY DANA, JR. 

One of your sisters, in turn, stays in Chestnut 
Street. 

Mamma sends her best love, the others are away or 
abed. 

Professor Child has been here, and inquired with 
interest for you. You did not send back the last 
corrigenda. 

Good-bye, my dear boy. 

Your affectionate father, 

R. H. Dana, Jr. 

Feb. 26, 1866. 

My dear Son, — 

I write a word to tell you that your mother has 
just learned that you have given away your birds' 
eggs. She did not know it until yesterday, and it has 
given her great distress. She says she has associated 
you with that collection, and [cannot] bear to have 
it go away. She shed a great many tears over it, and 
said that if you should die, or leave her, she should 
always want them to remember you by. You recol- 
lect, too, she did a good deal to help you get some of 
them. It was generous in you to give them to your 
friend; but I did not think at the time — as you did 
not — of her attachment to them. I could comfort 
[her] only by promising to write to you and ask you 
whether you cannot properly get them back. Willy 
Brewster [the ornithologist] is a generous boy, and 
will understand that you are not recalling your own 
gift, on your own account. You might send him this 
letter, if you thought best, and ask him to keep your 
eggs separate until you come back in the summer. 

Think about this, and let me know how you feel 
about it. The truth is, it would have been better if 



LETTERS FROM A FATHER TO A SON 457 

you had asked your mother's consent, but neither 
of us thought of it. 

Your affectionate father, 

R. H. Dana, Jr. 

Cambridge, March 25, 1866. 
My dear Son, — 

You wrote me an excellent letter. It gave me and 
your mother great comfort. I know it is hard to say 
in a letter all one feels on sacred or delicate subjects; 
yet you made us understand that you are thinking 
and feeling seriously on the great subject of religion. 

I wish I had had, when a boy of your age, the teach- 
ings and exercises of the Church. But our family 
were then all Congregationalists and held certain 
views of God and religion known as Calvinism, which 
were very repulsive and hard. And we young people 
took no interest in the Church. There were no inter- 
esting services, — no Easter, no Lent, no Good Fri- 
day, no liturgy. You have great privileges in all 
these respects, and religion, though made serious, 
as it ought to be, is not austere and repulsive. 

I hope Dr. Coit will think you ready for confirma- 
tion. Yet we submit it all to his better judgment. 

You must not be discouraged when you fail in your 
attempts to do God's will. Recollect, God does not 
look so much at what you do as at what you really 
try to do. The best service is imperfect in His sight. 
But He blesses the endeavor. 

Your February report is very good, and so is your 
examination. They are both most encouraging. 

We are all well. I gave your love to them all. 
Your affectionate father, 

R. H. Dana, Jr. 



458 RICHARD HENRY DANA, JR. 

Cambridge, Apr. 17, 1866. 
My dear Boy, — 

Your mother and Charlotte . . . will come up 
two or three days before the confirmation and stay 
about a week. 

I will come up a day or two before, but cannot give 
more than two days to it, as I am very hard pressed 
with work here. You need not engage me a place, 
as I can board in Concord, for the short time. 

Your mother wants me to remind you that she 
asked you to buy a present for [your sister] Rosamond 
at the Fair,i as it was Rosamond who did all the work 
in getting up the articles we sent you. . . . 

We are rejoiced to hear of your steady, decided 
efforts for a religious life. Of course, there are fail- 
ures. It is a contest. The war never ends in this life. 
Victories and defeats succeed each other, but the 
final conquest and peace is not on earth. 
Good-bye. 

Your affectionate father, 

R. H. Dana, Jr. 

We shall be very glad of the mayflowers. 

Apr. 24, 1866. 
Dear Richard, — 

I can't imagine your losing a fur cap. I should as 
soon think of losing a bureau or bed. You need not 
pay for your ball-cap. I will give you the money. 

Don't make yourself nervous about your spiritual 
1 Missionary Society Fair at St. Paul's School. 



LETTERS FROM A FATHER TO A SON 459 

condition. You must be natural and cheerful, and 
try to cultivate grateful feelings towards God. They 
will help to keep you in obedience, as much as direct 
efforts. But we shall soon be up to see you, and talk 
with you personally. 
Good-bye. 

Your affectionate father, 

R. H. Dana, Jr. 

October 14, 1866. 

My dear Boy, — 

A course of faithful efforts not only gives you the 
satisfaction of a good conscience and a peaceful mind, 
but the pleasure of knowing that you are giving com- 
fort to others, — to your parents, whose happiness in 
later life is to depend a good deal on your course. . . . 

I have resigned my office of United States Attorney 
because I could not adopt the President's [Johnson's] 
policy and approve his sentiments, and preferred to 
be in an independent position. . . . 

It gives me great comfort to know that you are 
happy in your studies and games and school and 
teachers and classmates. This is a great blessing. 
Few schools give boys so much satisfaction. After 
all, too, the mind gives color to all about it. . . . 
Your affectionate father, 

R. H. Dana, Jr. 

Nov. 23, 1866. 
My dear Boy, — 

It would give us great pleasure to see you at 
Thanksgiving, and especially your Aunt Betsey and 
Grandfather would be gratified; but I still think that 
it is so near to your regular vacation that it would 



460 RICHARD HENRY DANA, JR. 

rather take off the edge of your pleasure and of our 
expectation to come down for that day and go back. 

1 think you had better stick it out until the Christ- 
mas holidays, and have that to look forward to. It 
is some expense for me, which it is best to save. If 
I find your Aunt Betsey has set her heart on it, I will 
send for you, but my opinion is against your coming. 

Mr. Appleton^ has got home. He left his yacht in 
England, for the winter. 

Judge French ^ has given up his Agricultural Col- 
lege, and come back to the Boston Bar. 

We are all well. How blessed it is to live in a 
Christian family, and under religious influences, and 
to be conscious that one is really trying to serve and 
obey God ! May you ever keep that state ! 
Your affectionate father, 

R. H. Dana, Jr. 

Advent Sunday, Dec. 2, 1866. 
My dear Boy, — 

It is twenty-two years ago to-day that the Church 
of the Advent was begun by Dr. Croswell. He came 
to Boston early in November, and organized the 
parish, and held the first service on Advent Sunday. 
That led to its being called the Church of the Advent. 
I proposed the name, and suggested the cross over 
the altar, and the words "Lo I Come" for the motto. 
So far as I know, it is the first church in this country 
or England that ever bore the name. . . . 

Dr. Croswell baptized you, and when he entered 

^ Thomas G. His yacht, the Alice, was the first boat so small that 
had ever crossed the Atlantic. 

2 Father of my friend and playmate, Daniel C. French, the sculptor. 



LETTERS FROM A FATHER TO A SON 461 

the three names in the Parish Register, all alike, yours 
and your grandfather's and mine as sponsors, he said, 
"May there never be wanting a Richard Henry to 
stand before the Lord!" I want you to remember 
these things. . . . 

You were duly remembered by us all at Thanks- 
giving, and missed. We were all well, and had a 
pleasant time at Aunt Betsey's. 

Good-bye, and may God's blessing rest upon you. 
Your affectionate father, 

R. H. Dana, Jr. 

February 3, 1867. 
My dear Boy, — 

... I missed you very much. This was not only 
because you are the only boy, but because we had 
begun to get acquainted and I liked to talk to you 
and read with you. I was very sorry to be so very 
much engaged while you were here. I do not recollect 
ever having so little leisure. I wished to read with 
you, as a practice in reading, and to get you interested 
in subjects and to try you in elocution. But I seemed 
to have scarce an hour. ... It seemed as if I might 
have become acquainted with your mind, to know 
more of your feelings and opinions. But, perhaps, 
if God spares both our lives, w^e may become better 
acquainted next summer. . . . 

Your affectionate father, 

R. H. Dana, Jr. 

March 10, 1867. 

My dear Boy, — 

Your last journal, down to the examination, was a 
good one, and I did not let any one read it, but read 



462 RICHARD HENRY DANA, JR 

to the family such parts as I thought you would not 
object to their hearing. I wish you to feel entirely 
free in writing, and be sure that nothing will be seen 
by others except upon my judgment. 

Do not let it be a toil to you, yet stick to it as 
closely as you can, for it is a good exercise, morally 
and intellectually. You have improved in spelling. 
The enclosed list is all the errors — and one of those 
is not a mistake in letters — in sixteen pages of 
manuscript. 

As to self-examination, I think you have now 
arrived at an age when you can lay out your faults 
into classes, putting together those that are cognate, 
and examine yourself by them. I have great faith 
in this process, gone through with at the beginning 
of a day, in anticipation, as well as at the end of a 
day, in retrospect. 

I have a speech in the Legislature, which has 
attracted a good deal of attention in other states, on 
the repeal of what are called the Usury Laws; i. e., 
the laws limiting interest on money to six per cent. 
I favored the repeal of all limits, leaving money to 
find its level, like merchandise. I am also giving two 
lectures per week, at the Lowell [Institute], on Inter- 
national Law, beside my professional duties and 
attendance on the Legislature, and so am very busy. 
Your affectionate father, 

R. H. Dana, Jr. 

March 31, 1867. 

My dear Boy, — 

... In speaking, do not make gestures, unless you 
feel that you must, — unless nature prompts them. 



LETTERS FROM A FATHER TO A SON 463 

And speak slowly, deliberately, and forcibly. A 
speech without a gesture may be a good one. You 
have great moral helps in your school. You do not 
know how little is done for the religious character 
of boys in most schools. 

Your affectionate father, 

R. H. Dana, Jr. 



[The following letter was in reply to one from me, written 
when sixteen years of age. I had told how, in conversation, I 
sometimes left false impressions, for example, of having read a 
book I had not really read but had only heard about. After 
receiving father's letter, I made a point of correcting every false 
impression I might have left, though I no doubt bored others 
with small matters which gave them no concern.] 

Sunday evening, April 7, 1867. 

My dear Son, — 

. . . Failure in truth comes usually from want of 
moral courage. People do not dare, especially when 
facing another or when taken by surprise, to say 
what may injure themselves, or hurt another. So 
they take to shifts, evasions, equivocations, and even 
direct lies. I know persons who can say the truth in 
letters but not face to face. 

Sometimes falsehood comes from malice or pride. 
Then it is deliberate and not the result of fear. . . . 
Recollect that ordinarily want of truth is an effect 
and not a cause. There is some fault leads to it, as 
fear, or pride, or malice. You must search for the 
cause. 

But also make it a serious point of self-examination 
every night and prayer every morning, — exact truth. 
Correct yourself in little things, and if you have told 



464 RICHARD HENRY DANA, JR. 

any one what is not true, go to him and correct it. 
This will mortify your pride and be a good discipline. 
It is a noble thing in you to confess this so fairly, 
and I argue the best for you from it. 

Your affectionate father, 

R. H. Dana, Jr. 

Sunday evening, May 12, 1867. 
My dear Boy, — 

Your mayflowers came in good order, with a letter 
to your mother. I am very glad you sent them. . . . 

I think $7 was too much to spend at the fair, for 
a boy of your age. I have no doubt the others spent 
as much or more, but the boys are most of them rich, 
or have rich parents. Did you not, from the $7, buy 
anything permanent, or anything to give to either 
of your sisters? You should remember that Rosa- 
mond took a good deal of pains to get up things, and 
you should have remembered her by a present. 

. . . You had [better] begin now to write your 
journal again. It is a good task, and helps you in 
freedom of expression, as well as in observance of 
yourself. . . . 

We had a superb Easter at the Advent, and the 
church was crowded, people standing in the passages. 

Your affectionate father, 

R. H. Dana, Jr. 

June 14, 1867. 

My dear Boy, — 

We enjoyed highly our visit to St. Paul's. Nothing 
could have been pleasanter, and we were rejoiced at 
finding you so well, and content, and respected by 



LETTERS FROM A FATHER TO A SON 465 

your teachers. Dr. Coit spoke in the best terms of 
you. 

I remember, perhaps not exactly, a few lines, which 
I have no time to look up, — from Horace,^ I believe, 

Os homini sublime dedit, coelumque tueri 
Jiissit, et erectos ad astra ^ tollere vultus. 

I want you to commit this to memory, and say it, 
when you are walking with bent shoulders and eyes 
on the ground. Christian humility does not require a 
man to be prone or downcast. 

I shall try to be up on the 25th, but it is uncertain. 
Your affectionate father, 

R. H. Dana, Jr. 
Do not trouble to write a journal during the rest 
of the term, as your studies will be hard. 

Manchester, Mass., Sept. 19, 1867. 
My dear Boy, — 

We have had one of the Masters of Rugby staying 
with us for two days, Mr. Lee Warner. We have liked 
him much. 

I wish you would occasionally write your mother 
instead of me. It will gratify her. 

Your affectionate father, 

R. H. Dana, Jr. 

Manchester, Oct. 1, 1867. 
My dear Boy, — 

Your few kind words to your mother gave her great 
pleasure. 

1 From Ovid. Metamorphoses, Book I, 85, 86. 

2 Sidera in the original. 



466 RICHARD HENRY DANA, JR. 

We are both glad to know that you are attending 
to geology and mineralogy. It is well to know the 
earth on which we live, — its physical history, its 
powers, actions, and capabilities. This knowledge 
will make you an attentive observer, wherever you 
travel, and will give you objects of interest in even 
the dullest and most unpromising places. Geology, 
in its larger and higher aspects, is a noble study for 
thought. You should know the earth, stars, trees, 
flowers, and birds. Some men go through life as if 
they were deaf and blind. Such tastes lead one into 
the country, and out of the artificial city life, and are 
good for the health of the body and spirit. 

This morning, at breakfast, sitting and standing 
erect were talked about, and we all agreed in the hope 
that Richard would be careful and keep his figure 
erect. Pray don't go drooping and prone, but erect, 
manly. . . . 

The occasional recurrence of the Holy Communion 
forms an excellent opportunity for a renewal of life, 
for, as a mechanic might say, tightening up the screws, 
or, as they do on the railroads, striking the wheels to 
see if any are unsafe for the next journey, and oiling 
the rough and grating places. I am glad to see you so 
using it. . . . 

Good-bye, my dear son. 

Richard H. Dana, Jr. 

Cambridge, Oct. 27, 1867. 
My dear Boy, — 

We have got your letter to your mother, in which 
you tell her of your sickness.^ We are all very sorry 

^ I suffered much from occasional attacks of slow fever and forms 
of indigestion, from which I never fully recovered till I had gone through 



LETTERS FROM A FATHER TO A SON 467 

to hear of it. Sorry for the discomfort and pain you 
may suffer, for your loss of the sports and walks, and 
for the putting back in your studies. When you get 
this, just put a piece of paper in an envelope and send 
to me, to say how you are. Don't trouble yourself 
to write a letter unless you wish to do so. 

Take good care not to get sick. Do not study too 
hard. No learning or rank will make up for a loss of 
health and vigor of body and brain. 

... I promised to send you the Nation, so I have 
begun to do so. It may be a little too old for you, 
but I think you will find things there to interest you. 

Your affectionate father, 

R. H. Dana, Jr. 

Manchester-by-the-Sea, 
Sunday, Sept. 20, 1868. 

My dear Son, — 

I have taken my first leisure Sunday here, to write 
you a letter. One Sunday I was at Windsor,' and 
another at Newport. 

We have just had service. All there but Sally, who 
is still in B. or C, and you, and your Aunt C, who 
has her Roman Catholic service for herself and the 
servants. Your grandfather read the lessons and I 
the prayer, sermon, and epistle. . . . 

You have noticed that I have invited all the young 
men to read [the Lessons], for I think it does them 
good to be treated as within the body of believers in 
such common exercises. . . . 

training on a college crew. Since my rowing experience, I have never had 
returns of such troubles. 

1 Windsor, Vermont, with Mr, WUliam M. Evarts. 



468 RICHARD HENRY DANA, JR. 

As to your request for the Nation, I do not feel sure 
that it is best for you. You had better not get inter- 
ested in party politics. You are in danger of getting 
excitement and confidence without real knowledge. 
By and by, you will read histories and works on the 
constitution of states and political economy, and will 
be better grounded in principles from which to judge 
of passing questions. 

By the way, a teacher ought not to be arguing and 
enforcing his opinions upon boys. I am sure Dr. Coit 
would not like it. 

As to the bonds, I do not know who the teacher is 
to whom you refer; but either he has some sharp 
point of technical law in his head, or he does not 
appreciate the nature of the public faith of a nation. 
The borrowed money of a nation is always a sacred 
debt, governed not by rules of municipal law, which 
govern all other debts, but by rules of honor. We 
borrowed the money when we were in straits, and 
gave bonds for it, promising to pay so many dollars 
on each bond. The Republicans say we are bound in 
honor to pay in gold or silver dollars, or in paper as 
good. Paper money is a mere promise to pay. Now, 
when we borrow money and promise to pay it, can 
we pay it by giving a written promise to pay? It is 
only an extension of the time of payment. It is, in 
short, the act of a bankrupt. This nation is not bank- 
rupt, and is bound in honor to pay. The Democrats 
thought it would be a popular thing to raise a cry 
against the bondholders, but it has failed. Our people 
mean to pay back honestly their borrowed money. 

Do not study too hard. If you are pretty well next 
vacation, you had best have a Greek teacher every 



LETTERS FROM A FATHER TO A SON 469 

other day.^ All send love to you, and are much 
obliged to you for your full letters. 
Good-bye, my dear boy. 

Your affectionate father, 

R. H. Dana, Jr. 

Boston, Nov. 27, 1868. 
My dear Boy, — 

Don't sell the sled. You are right as to the feeling. 
Never sell a present. Never give one away, unless in 
some case of distress when you have nothing of your 
own to give. 

If your skates are good, only not as handsome or 
nice as you would like, keep them. If they are not 
good, sell them and buy another pair. 

We were all at your Grandpapa's at Thanksgiving. 
. . . Your health was duly honored. 
In haste. 

Your affectionate father, 

R. H. Dana, Jr. 

Tuesday, p. m., 31 May, 1870. 
My dear Richard, — 

I have just received your note, but your mother 
says you have not answered one of the questions she 
asked you to answer at once. Now, Dick, don't be 
wool-gathering, but answer them by return mail. 

6. Tell me which is the best hotel in Concord for 
us to go to. We — Mamma, one of the girls, and I — 
shall come up Wednesday noon, I hope. 

* To make up loss of lessons caused by illness. 



470 RICHARD HENRY DANA, JR. 

Now answer at once these six questions, and you 
need say no more. 

Your affectionate father, 

R. H. Dana, Jr. 



30 Court Street, Boston, May 12, 1870. 
Dear R., — 

I enclose a good monthly report. I have written 
Dr. Coit in favor of your being examined at the June 
instead of the September examination, and in favor 
of your entering freshman. 1 . . . 

Your affectionate father, 

R. H. Dana, Jr. 



Portree, Isle of Skye, 
Aug. 24>, 1870. 

My dear Son, — 

I write you from this strange place, because I 
possibly may not be back before you enter college. 

Your course at St. Paul's has been such as to entitle 
you to my entire confidence. At the same time, the 
college course of four years is one of such moment, 
and so decisive of one's character and future, that I 
am naturally desirous of saying a few words to you 
as you enter upon it. I am the more moved to do so 
by a sense that it is within possibility — though I am 
not given to entertaining fears — that I may never 
see you all again. 

If I should not, you will see that great responsi- 
bility lies on you as to your mother and five sisters, 

1 Dr. Coit preferred to have boys stay one extra year at school and 
enter sophomore, so as to avoid what he considered the special dangers 
of the freshman year. 



LETTERS FROM A FATHER TO A SON 471 

— as your grandfather can live but a short time, and 
there is no uncle or brother. But if I do, as I doubt 
not, return, I have had so many warnings that my 
anxious and hard-worked life may end suddenly that 
your position may at any time be a grave one. 

You know that in such event your first duty is to 
your mother. For advisors, you will go to Mr. Parker 
and Judge Hoar, who are my firm friends as well as 
business trustees. 

I took an expensive Holworthy room for you, in 
order that you might have the great advantage, 
whoever may be your chum, of a place by yourself, 
for reading and meditation. It is of inestimable 
value. Now, I wish you to bear in mind why it was 
done, and use it accordingly. Let me propose this to 
you, — very likely you would do it, of yourself, — 
when you take possession of your bed-chamber, con- 
secrate it by an offering to God in prayer. Ask that 
it may be to you a sanctuary for prayer, for devout 
reading and thought, and for self-examination and 
penitence. 

You will also find it a place of retreat from com- 
pany. And, on that point, you must begin right. At 
Harvard, you will find a good many idlers and gos- 
sipers, for it is little better. Such men are cankers 
of one's time. Never hesitate to say that you are 
engaged, — that you must study, — and your bed- 
room gives you a retreat. 

My only fear about your room was that you would 
have the appearance to others of starting on a scale 
of expense larger than I wish you to keep up. It is 
necessary that you live as economically as possible, 
for my burdens, with your mother and sisters and 
you, will be very heavy. And anxiety — not work — 



472 RICHARD HENRY DANA, JR. 

wears one out. Besides, it is better for you. Self- 
denial and the habit of refusing others give both 
strength of character and independence. 

Don't pay much attention to the apparent opinion 
of classmates as to one another, as to who is or will 
be this or that, especially at first. The only question 
is this, — what will a man be in respect of character 
and acquirements at the end. And as to that, you 
know that I have no ambition about your relative 
rank. First, take care of your health. If you are not 
strong to labor, our family must go down, in poverty 
and obscurity. Keep health, if you are the fiftieth 
scholar. If you come out with character, health, and 
knowledge, that is all. 

Do not get drawn into young girls' society. It is 
possible that you may become, or may think you are, 
interested in some one. Think what you are to do on 
earth. Man is meant to he and to do, and not to be 
tied down. You have four years of college, and then 
of a profession, — through all which you must be 
free, to do whatever will be best for your future. Don't 
let your good sisters make a ladies' man of you. Take 
care to use your Sundays at home profitably. 

If you get into any trouble, by your own fault or 
by accident, come to me at once. I know and can 
allow for the temptations of youth; and, surely you 
need not fear that I shall be hard or unsympathetic. 
Remember that, and treat me as your friend as well 
as father. 

Good-bye, my dear boy. There is nothing to make 
you anxious, but everything, with watchfulness, to 
encourage you. 

Your affectionate father, 

Richard H. Dana. 



LETTERS FROM A FATHER TO A SON 473 

Boston, July 11, 1871. 
Dear R., — 

. . . You will be tempted by this incessant and 
absorbing interest^ and the constant presence of 
others. But never let your reading or devotions go 
by or be slighted. This is to be one of your trials, my 
dear boy. 

Your affectionate father, 

R. H. Dana, Jr. 

Boston, July 15, 1872. 

My dear Boy, — 

. . . Pray be careful about your training. Do not 
overdo. A gentleman who saw you here last week 
thought you looked a little overdone. 

I care very little which boat is a few inches or feet 
ahead, but any, the slightest, injury to your organs, 
or brain, or blood vessels would be a lifelong distress. 
Ten persons speak to me of the risk, to one who speaks 
of the result. 

You know I am not a croaker or fearful. And I 
have confidence in your discretion and self-restraint. 
Only, don't let them fail you. 

Your affectionate father, 

R. H. Dana, Jr. 

Boston, Aug. 24, 1872. 4 p. m. 
Dear Richard, — 

I congratulate you on the race ;^ for, though not the 
victors, it is something to be second out of six. . . . 

1 Freshman boat-races on the Connecticut above Springfield, won 
by the Harvard, on which I rowed stroke. 

^ Intercollegiate university race at Springfield. I was rowing stroke 
of the Harvard "varsity" crew. 



474 RICHARD HENRY DANA, JR. 

Besides, my dear boy, it may be better for you in 
the end, not to have been victorious. It is a disci- 
pline to your moral character. Perhaps you may be 
able to thank God for some of these little disappoint- 
ments and mortifications. An uniformly successful 
youth is not the best presage for life. 

I think the Harvard men will be generally very 
proud of the result, ^ although short of what it might 
have been. 

Your affectionate father, 

R. H. Dana, Jr. 

Boston, Aug. 26, 1872. 
My dear Boy, — 

. . . But, my dear matriculated Harvard student, 
"knee buckles" is not spelt "nee buckles," and 
"whom" is the objective case, not "who," e. g. 
"whom we are expecting," — not "who we are ex- 
pecting," You must remember that there is a preju- 
dice in favor of spelling and grammar which it is not 
wise to cross. 

1 enclose two letters of introduction for you in 
Philadelphia. I wish you would stay over a few hours 
there, and call upon Mr. Binney and Judge Hare. 
Mr. Binney is ninety -four years of age, I think, and 
in many respects may be called "the first citizen of 
the Republic." He was a classmate of my uncle;^ at 

' Amherst first. Harvard second, Yale 1 minute, 16 seconds behind 
Harvard. 

2 Probably Francis Dana, who was in the class ahead of Mr. Binney, 
or Edmund T. Dana, who was two classes below. Though not class- 
mates, they were in college at the same time, and knew Mr. Binney. 



LETTERS FROM A FATHER TO A SON 475 

Harvard, a friend of my father, and a most kind and 
courteous friend to me. It is an honor to you to know 
him, and he will esteem it an attention on my part to 
introduce you. Judge Hare is his son-in-law, and a 
lifelong friend of mine. 

If Mr. Wayne McVeagh is in Harrisburg, call on 
him, in my name. 

Your affectionate father, 

R. H. Dana, Jr. 

Steamer Olympus, off Queenstown, 
July 18, 1873. 

My and our dear Friends all, — 

Professor Child is invaluable, — never sick, self- 
sacrificing, obliging, and doing something for every 
one in need, getting up singing and other entertain- 
ments, and every afternoon has all the children about 
him, telling them fairy stories. 

Richard H. Dana, Jr. 

Liverpool, July 21, 1873. 
My dear Boy, — 

Now, my dear boy, what shall I say of the race.f^ 
We heard the news, which was in the Times of Sat- 
urday, — Yale (1), Wesley an (2), Harvard (3). I am 
sorry for you, for your faithful efforts, your conscien- 
tious work for two years, deserved success. But 
Harvard averages better for the two years, I suppose, 
than any college. Of course, there is a secret history, 
which I shall hear. As I told you, if you come out in 



476 RICHARD HENRY DANA, JR. 

good health, unharmed, I am grateful to God. The 
all but chance result of a close race of many boats is 
of no real moment. And, perhaps, the effect on your 
character may be better than if you had led the race. 
And that is the great point with you and me and us 
all. What will you be when you begin the work of 
the world? That is the question, in God's sight and 
in the opinion of men. I know you feel all this and 
appreciate it, and I need say no more to such a man 
as you are, — commanding the respect as well as the 
affection of his father. 

Your affectionate father, 

Richard H. Dana, Jr. 

Bex [Switzerland], Aug. 10, 1873. 
My dear Boy, — 

We . . . reached London on Friday, 25th July, 
and stayed there a little over a week. In the course 
of that time, L. [one of his daughters] saw both houses 
of Parliament in session, heard Mr. Gladstone's 
speech on the Duke of Edinburgh's annuity, and 
heard a few words from other public men in each 
house, and saw most of the eminent public men, such 
as Lord Granville, the Duke of Argyll, Marquis of 
Ripon, Marquis of Salisbury, Earl of Derby, Lord 
Chancellor Selborne, the Archbishop of Canterbury, 
etc., etc. Then she dined at Lady Frederick Caven- 
dish's with Lord Lyttelton and William H. Glad- 
stone, and lunched with Lord and Lady Kinnaird, 
and on Sunday afternoon heard Canon Liddon preach 
at St. Paul's, and the Sunday before heard Dr. 
Vaughan at the Temple and Dean Stanley at West- 



LETTERS FROM A FATHER TO A SON 477 

minster Abbey. All three are good speakers, but 
Canon Liddon is a master of elocution. . . . 

It was a joyful meeting, for which we should hold 
grateful hearts to God. 

S. and R. had come from Leuke Bad a few days 
before, so our circle was complete, with the exception 
of the dear son and brother. But, I brought them 
your last photograph, which was new to them, and 
served somewhat to make up for your absence. . . . 
Your affectionate father, 

R. H. Dana, Jr. 

Paris, ^M(7i/.s/ 31, 1873. 
My dear Son, — 

I do not think naught of success, even in jumping 
over a pole, where it depends on qualities brought to 
bear ; and I acknowledge that boat training and racing 
are a discipline and test of qualities, moral and men- 
tal, as well as physical. But I assure you that Blaik- 
ie's tribute to you, in the Herald, as you appeared 
the night after the race, gave me more satisfaction — 
I mean true, real satisfaction — than I should have 
received from the mere fact that your boat was a 
little ahead of the others. Which boat was ahead is 
a trifle. What character you have at twenty-five or 
thirty years of age, is of unlimited importance to you, 
and of far more interest to me. You have my respect 
and my entire sympathy in all you did. . . . 

Good-bye, my dear boy, and may God bless you 
and keep you "under the shield of faith." 

Your affectionate father, 

Richard H. Dana, Jr. 



478 RICHARD HENRY DANA, JR. 

P. S. . . . 

The extract you sent me from Mr. Walker was very 
gratifying. He is a gentleman, and appreciates high- 
toned conduct in others. 

You have the sympathy and respect of all of us, 
for we feel that you have acted a thoroughly manly 
and generous part, and that is the great point. The 
result confirms the opinion I have always had that 
a big university race, in which so many boats take 
part, and in which the "schools" are admitted, would 
prove unsatisfactory. The sooner they are abandoned, 
the better. 

I am glad you are at work on the Washington. 
Read some poetry also, — Shakespeare and Milton 
and Horace. Some of Burke, e. g. "Economical 
Reform," "Letters to a Late Noble Lord," "Concili- 
ation with America." 

Again good-bye, my dear boy. 

Your affectionate father, 

R. H. D., Jr. 

Oxford, Sep. 12, 1873. 
Dear Dick, — 

I think the Springfield muddle is described in this 
— Harvard beat, and Yale won.^ 

Your affectionate father, 

R. H. Dana, Jr. 

^ This was the year of the double, or so-called "diagonal," finish line. 

How Harvard crossed the real finish line first and then stopped rowing, 

how the judges sighted along a wrong line below the right one, how the 

eferee, relying on the report of the judges, gave his decision in favor of 



LETTERS FROM A FATHER TO A SON 479 

Oct. 20, 1873. 

Dear R., — 

I send you a memorandum I have had written, 
from my dictation, on the subject of your debate. 
Preserve it, — as I may never make another. Don't 
debate from it; but read and ponder, and then lay it 
aside, and speak from your own mind, having digested 
and assimilated it all. 

You should form habits of filing important papers ; 
and I think it best to destroy at once what I do not 
care to keep. 

Affectionate father, 

R. H. D., Jr. 

Oct. 30, 1873. 
Dear R., — 

I hope your relations with that society ^ are re- 
established. It gives me pain to think that you have 
not been able to serve it to advantage. Pray do, for 
the rest of your course in college. 

I would rather have had you president of St. Paul's 
Society than of any club in college, — on the ground 
of duty and character. 

Affectionate father, 

R. H. D., Jr. 

Yale, though the flags had been given to Harvard by the Regatta 
Committee, and how, on discovering the judges' error too late to change 
his decision, he published a card over his signature, sajing "The race 
was not decided upon its merits," is told in the Harvard Book (Univer- 
sity Press, 1875, vol. ii, pp. 244-246), with diagram taken from the 
note-book of Mr. Harris, the engineer who laid out the course, explain- 
ing the error. 

^ St. Paul's Society, at that time very inactive. 



480 RICHARD HENRY DANA, JR. 

June 19, 1874. 
Dear R,, — 

If you get this letter before your declamation, do 
not make any gestures because you think them 
necessary in speaking. Make none unless you feel 
them. And try to express as much by voice and as 
little by gesture as possible. Yet, as yours is a speech 
of some passion (suppressed) there are passages where 
gesture speaks well. 

Never mind the prize. That is often an accident, 
and sometimes an injustice. But get the experience 
of such a speech. 

Your affectionate father, 

R. H. D., Jr. 

July 8, 1874. 

I should like to show myself among your friends 
on the 16th, 1 but it would not be right for you and me 
both to be away from Boston at the same time, in the 
present state of Chestnut Street. 

R. H. D., Jr. 

Boston, July 11, 1874. 
Dear Richard, — 

I have read Bulwer, but not "The Parisians.'* 
Although Bulwer began as a dandy, and some affec- 
tations and dandyisms hung about him, yet there is 
always good, deep, serious thought and striking gen- 
eralizations, which interest me. 

Things continue in such a state at Chestnut Street 

1 The day of the university boat-race at Saratoga. 



LETTERS FROM A FATHER TO A SON 481 

that I do not feel it right for me to leave Boston, 
while you and all my family are away. So I must let 
your mother and C. go alone. . . . 

You know my perverse sentiments about the inter- 
collegiate regatta system. I do not care which of ten 
boats is half a length ahead. But I like to have you 
succeed in what you have spent so much labor and 
thought upon, and moral force; and my moral sense 
would be satisfied to see Yale punished for her low 
tone and cunning and bullying of the last ten years. 
So, if you succeed, you will find your father greatly 
pleased and sympathetic; and, if you do not come out 
first, your father will take it easily, and thank God 
for your safety, health, moral energy, and character, 
and feel that a defeat may, in the Providence of God, 
put you higher in His sight, and even in the things of 
this world, at thirty years of age than a victory. . . . 

R. H. D., Jr. 



Boston, July 20, 1874. 
My dear Boy, — 

I should have written you sooner, but the interven- 
ing of Sunday prevented my getting any trustworthy 
information until this morning. 

You will be glad to know that the special corre- 
spondent of the Advertiser, Allen, is a Yale man (as is 
the editor) ; that Allen was at the raft and heard all 
that passed between the Yale and Harvard crews 
after the race; that he has given a faithful account 
of it, representing the Yale men as foul-mouthed 
blackguards, and highly commending the self-com- 
mand and dignity of Harvard. He says the forbear- 
ance of the Harvard crew was all that prevented a 



482 RICHARD HENRY DANA, JR. 

general row. He says the language used by Yale is 
not fit for print. The other Boston papers are sub- 
stantially to the same effect, and your crew have the 
sympathy and applause of all people. The few Yale 
men here are ashamed and silent. 

I. As to the race, it is plain that you were fouled 
by Yale, — indeed such is the decision of the umpire. 
I see no room for doubt that the fouls were intentional. 
That is the general opinion here. 

II. These fouls delayed and embarrassed you so 
long as to give you no fair chance against Columbia 
and Wesleyan. Whether you would have beaten 
Columbia or not but for the foul, no one can know, 
but it seems probable. 

I have a fear that this crowding and fouling of 
Harvard was an understood thing between Yale and 
Wesleyan; or, perhaps, not pre-arranged, but readily 
fallen into.^ 

Harvard stood very high for honor, magnanimity, 
and courtesy, as well as being (probably) the best 
boat on the lake, and Yale is disgraced. 

Still, all this is very hard to bear. If, as Scripture 
says, "It is well for a man that he bear the yoke in 
his youth,'' you have had your share of misfortune. 
Twice, in succession, you have been deprived of the 
fair results of years of patient thought, hard labor, 
self-denial, and self-restraint, by accident, the mis- 

1 Whether pre-arranged or not, the Yale crew not only fouled, but 
kept the Harvard crew from rowing until Columbia and Wesleyan, 
which had been behind, had gained a lead of some six lengths, which 
lead Harvard was not able to overcome when once she got clear of Yale, 
though gaining all the rest of the way. This delay was the more pro- 
voking as up to the time of the foul Harvard was rowing well within 
her powers, at thirty-four strokes per minute. She had not spurted, 
while both Yale and Columbia had. 



LETTERS FROM A FATHER TO A SON 483 

take and ignorance and fraud of others. It is a great 
discipline, and a great trial. But, my dear boy, you will 
[find] that the prizes of life go much in the same way. 
Accident, fraud, mistake, ignorance, and violence are 
pow^erful and constant agents, and Springfield and 
Saratoga results will represent a large portion of the 
public results of life. In all I said to you before you 
went, I wished to prepare you for the disappointments 
and dissatisfactions that I knew awaited you. 

It is well that youth is hopeful and trustful and 
buoyant; but I have seen too much of life to expect 
fair results from the action of great numbers, under 
great excitement, where no great principle is clearly, 
undeniably, and evidently at stake, . . . and there 
is [no] time for sober second thought. I trust this 
will end the intercollegiate regatta. 

You, my dear boy, have done nobly, and all your 
friends feel so. 

Tell me if the umpire was the man Yale nominated, 
and you objected to, as one-third professional, etc. 
If so, how was he got in? His decision is illogical, 
but I suppose it means, "I must condemn Yale, but 
will give Harvard as little as I can." 

Write me what you mean to do, and when you go 
and where! 

Affectionate father, 

R. H. Dana, Jr. 

Boston, Aug. 25, 1874. 
My dear Boy, — 

Don't publish a word, or take any notice of news- 
paper accounts, whether Blaikie's, or any one else. 
You have a vulgar, forgetful, scatter-brained public 



484 RICHARD HENRY DANA, JR. 

to deal with.^ Then, if you deny or explain a single 
thing in the papers, it will be treated as an admission 
of the truth of everything else that has appeared, and 
your enemies will sneer at it, and perhaps not print 
it, but allude to it. 

You have my entire approbation and true sym- 
pathy. . . . 

R. H. D., Jr. 

Boston, July 27, 1874. 
Dear R., — 

I think the public now understands clearly that 
Wood decided that Yale was in fault for the [foul], 
and Harvard exonerated, as he (1) refused Yale's 
claim, (2) decided that she caused it by crossing into 
your water, (3) gave you your place in the race, 
which you would have forfeited if you had fouled 
Yale. He has not a trained mind, and is no writer, 
so he expressed himself bunglingly as to the disallow- 
ing of your claim as to the effect on the race. 

His decision was in two parts, — first, to settle the 
fact; second, to determine the consequences of that 
fact. The fact he decided clearly enough, — that 
Yale was, and you were not, in fault. The first con- 
sequences he decided clearly enough, viz.: that you 
had your place, and as Yale had no place to lose, she 
did not need to be formally deposed. As to whether 
the case came under the Rule XIV, and the construc- 
tion of the Rule, he was not logical and perhaps un- 

1 Compare the words of Washington, who believed that the people 
"mean well," "but it is on great occasions only, and after time has been 
given for care and deliberate reflection, that the real voice of the people 
can be known." 



LETTERS FROM A FATHER TO A SON 485 

sound; but that is for Harvard only to find fault with. 
If he ought to have given you a new chance, or, if 
he did not, should have refused under Rule XII, it 
does not affect his decision that Yale only was in 
fault. The public will see this as soon as a public ever 
does anything, — in time. ^ . . . 

Affectionate father, 

R. H. Dana, Jr. 

Boston, Aug. 5, 1875. 
My dear Boy, — 

You have means enough [letters of introduction] 
for seeing the upper crust of England, — its educated, 
wealthy, and governing classes. But I wish you to 
study England thoroughly, in its lower and middle 
strata as well as the upper. If you see only those to 
whom you have letters, you will make it but a pleas- 
ure trip. It will be like taking a mince pie as a speci- 
men of the products of a country. I wish you to make 
acquaintance of some dissenters, some republicans, 
some of the manufacturing and working classes, and 
see how they feel and think and talk. It is right to 
see castles, cathedrals, colleges, and ruins, and know 
how nobles and gentles think and act, but you must 

^ As to the umpire, he was a professional who, we were told, kept a 
gymnasium in New York City, which some of the Columbia students 
frequented. We had objected to his appointment, but were outvoted. 

As to his decision, he held Yale responsible for the foul. That, by 
Rule XII, should clearly have entitled us to have the race rowed over 
again, omitting Yale, but he refused Harvard's claim for a new race, 
because of Rule XIV, which states that "every boat shall stand by its 
own accidents occurring during the race." The referee argued that the 
foul was not Harvard's fault and was therefore its "accident." Of 
course, the words "own accident" in that rule, meant an accident 
wholly one's own, such as breaking an oar. 



486 RICHARD HENRY DANA, JR. 

not leave the other undone. I wish you to see two 
things I have never seen, the mines and the manu- 
facturing towns. You must, now or next year, get 
admission to a coal and a copper mine, and see how 
the miners live and work, and visit one or two great 
hives of manufacturing towns, as Manchester, New- 
castle, Wolverhampton. You should also see some- 
thing of the way in which farm laborers live, on the 
worst as well as on the best estates. 

You will, of course, attend all the debates in Lords 
and Commons that you can, and hear some jury 
trials. There will be trials at Guildhall, or wherever 
the City Assizes are held, and in the country. Also, 
give a day or two to the county courts, held by one 
judge, and see how the parties there enter, and are 
summoned, then their cases tried without counsel. 
The tenure of lands, the rights of tenants and farmer, 
and the condition of farm laborers are one great 
question in England, and the education of the poorer 
classes is another. 

The Abbey, St. Paul's, Temple, Tower, Mansion 
House, Bank, Exchange, Whitehall, Parliament 
Houses, Westminster Hall, National Gallery, (Tra- 
falgar Sq.), British Museum, South Kensington 
Museum and its appendages (two days, at least), 
Crystal Palace, Zoological Gardens, St. Barnabas, 
All Saints, Margaret Street, St. Clement Danes, 
(Dr. Johnson's), and some other of Wren's churches 
are things I now think of, without looking at any 
book. See also Lincoln's Inn, Doctors' Commons, 
and the Heralds' College. 

Good-bye, my dear son. 

Your affectionate father, 

R. H. Dana, Jr. 



LETTERS FROM A FATHER TO A SON 487 

Boston, July 12, 1875. 
My dear Son, — 

I intend to send you the Nations. They will keep 
you well up in American affairs. 

Again, my dear boy, I advise you to keep a diary, 
on sheets of paper, sending them home by each mail, 
putting in it nothing you are not willing all should 
read. We will see the sheets numbered and kept. 
They will be a comfort in after years, as well as a 
convenience. This will also save you a great deal of 
trouble in writing home. The diary will go round and 
satisfy all. Then you can write a short note to any 
of us for particulars. Don't try to express feelings, 
or describe fully, for it will become a hore, you will 
get behindhand. Send something off once a week. 
When you get into company, — as dinner, breakfast, 
etc., — give names of all present. 

I do hope you are now done with boating. Of 
course, you will wish to see something of the British 
systems, in order to benefit the Harvard general 
system of boating, but I hope you will dismiss it from 
your thoughts, and give yourself to the study of the 
political and social conditions of the countries you 
visit, and the conversation of the most intelligent 
men and women, and to the great works of art, in 
architecture, painting, and sculpture, and the his- 
toric monuments. You have a noble opportunity. 
Make the most of it! Do not begrudge expense, when 
it enables you to see things or persons worth seeing 
and knowing, and make a set-off in lodgings, table, 
wines, and purchases of matters of taste. That is 
the way Sumner did. He saw everybody and every- 
thing worth seeing and knowing, and lived humbly 



488 RICHARD HENRY DANA, JR. 

and avoided the company of aimless, money-spending 
youth. . . . You must do all you can to fit yourself 
for the career of a jurist and statesman, so that it 
shall not be your fault if you are unemployed. . . . 

Don't let anything drive you from your plan of 
spending weeks in Paris, in learning to speak and 
write French with all the ease possible. Take a tutor, 
who will talk with you and read aloud to you and 
make you read and write. Get a good tutor. It will 
be the best investment you ever made. . . . 

When you see any persons to whom I introduce 
you, take care to say all you can as to my feelings 
about them, etc. God bless you my dear son. 
Your affectionate father, 

R. H. Dana, Jr. 

' Manchester, July 18, 1875. 
My dear Son, — 

. . . You must not mind an anxious father suggest- 
ing little things for your correction, — I mean, you 
must mind, but not be annoyed. [Then follows a series 
of suggestions on matters of manners, carriage, etc.] 
I have only a natural desire to see you perfect. I have 
confidence that you will do right and best possible 
in the weightier matters, of mind, religious, scientific, 
political, legal, and social study. 

Affectionate father, 

R. H. D., Jr. 

Intervale House, North Conway, 
Aug. 26, 1875. 
Mr. R. H. Dana, 3d. 

My dear Son, — 

We are so affected by your having struggled to 
write your journal up to time that we regret all the 



LETTERS FROM A FATHER TO A SON 489 

censures we put upon you for your delays. We have 
received the sheets up to and including Aug. 9th at 
Birmingham, and your letter from that place. 

I have letters from Harcourt^ and Phillimore,^ 
both of whom speak of you in the kindest terms. I 
can truly congratulate you on your social success. 
It has been of the highest order. As fashion, I care 
nothing about it. But as part of a liberal education, 
it is a great privilege to have seen and conversed with 
the leading men and women of an empire, on familiar 
terms, at the beginning of life. While it is true that 
your introductions opened the doors to you, you 
would not have been invited so often, and had so 
much done for you, if you had not made a favorable 
impression by your intelligence and manners. 

I send or shall send letters to Bancroft Davis, our 
Minister at Berlin, and to Mr. Marsh, our Minister 
at Rome. D. is son of George D. of Massachusetts, 
and nephew of George Bancroft. Marsh you know 
about. If I write to Chabrol, he was a guest of mine, 
breakfasted with us to meet Agassiz et al., and a 
young gentleman of the highest character and finest 
manners. I think he is a Legitimist. He is a member 
of the Assembly. 

Kapnist I saw a good deal of years ago, in Boston. 
He was often at my house, — a very clever man, 
in the employ then of the Russian Government. 
His subject was political administration, including 
judicial. I believe his failing is that while he learns 
everything he does nothing. 

1 Sir William Vernon Harcourt. 

2 Sir Robert Phillimore, Bart., writer on international law, admiralty 
judge, etc. 



490 RICHARD HENRY DANA, JR. 

Calvo ^ has published an International Law. Blunt- 
schli is a leading author on International Law. . . . 
Your affectionate father, 

R. H. Dana, Jr. 

Manchester-by-the-Sea, 
Od. 1, 1875. 
My dear Boy, — 

Your letter to your mother, in which you express, 
so pathetically, the pain my first letter gave you, and 
showed how you took to heart the censure I put upon 
you for not writing us oftener, really gave me com- 
punctions. Your mother and sisters say that when 
I think any one in fault, I use, in writing, more severe 
terms than I am aware of. I dare say this is true. 
But in extenuation it is to be said that, after your 
first letter, from Fenton's, we had heard nothing 
from you for two weeks. Then I knew that you did 
not like writing letters, and was aware that youth 
rarely credit how much their parents depend upon 
them for their comfort and satisfaction. But you 
have been so very considerate and faithful ever since, 
in your letters and postals, and have sent your jour- 
nals so punctually, and so fully written, that I feel 
like reproaching myself for having given you any 
pain or discomfort. As I have before told you, your 
journals hit a good mean between bareness and such 
fullness as may make them a toil to you. Your In- 
veraray journal was excellent, and has been read by 
all your family with great satisfaction and delight. 
Especially to those who have not been abroad, it 
reads like a novel. . . . 

I have written to Sir W. V. Harcourt, Sir R. Philli- 

^ Carlos Calvo, writer on history and international law; born 1824. 



LETTERS FROM A FATHER TO A SOX 491 

more, and especially to Lord Spencer, thanking them 
for their attention to you. Perhaps I may do the 
same to the Argylls. 

Some one asked one of your classmates, or your 
schoolmates, Thomas, if these things might not turn 
your head, to which he replied, "Oh, no! Dick is n't 
that sort of a fellow, at all." I was greatly pleased 
to hear that, and, my dear son, I believe it to be true. 

- 1 am truly glad you liked the Kinnairds so much, 
and that Lord Coleridge and Lord Tenterden were 
so attentive and instructive, and I am particularly 
pleased by your visit to Sir John Taylor Coleridge at 
Ottery St. Mary's. He has always been one of my 
best friends, and is as good an example as you can 
find of the Christian gentleman. . . . 

I am now greatly interested to see how you are 
affected by France. Let me repeat my hope that you 
will give full time to the speaking and writing of 
French, and not leave Paris until you are able to talk 
French with ease, and to understand Frenchmen when 
talking to one another, however long it may take you, 
and whatever it may cost. . . . 

361 Beacon St., Oct. 11, 1875. 
My dear Boy, — 

I meant to have you live in a French family, where 
only French is spoken, and have a French tutor. And 
pray eschew English and Americans. In Italy and 
Germany they will do you no harm, for you will not 
try to speak Italian or German; yet, even in those 
countries, I trust you will associate as much as pos- 
sible with the people of the country. There is a 



492 RICHARD HENRY DANA, JR. 

pleasure in meeting American friends, and especially 
college friends and Boston people, but I look to you 
to show the strength of purpose to be very sparing of 
intercourse with the best of them. You are on a 
course of study and work, and must stick to it. . . . 

Make the utmost of your French introductions, 
read the French journals, and get your ear used to it; 
but the tutor is the one indispensable thing. . . . 

If I enclose a letter to M. Duvergier de Hauranne, 
know that he is of rank and old descent, and was a 
good deal at our house in Cambridge, and wrote a 
book on America, which he sent to me. 

Your affectionate father, 

R. H. Dana, Jr. 

Boston, Oct. 22, 1875. 
My dear Boy, — 

Your journals are greatly prized by us. You work 
easier, as a new ship does after a little sailing, and I 
hope it is less trial to you to write. If you knew how 
eagerly they are looked for and read by us, and then 
by Rutland and Wethersfield and Sally, it would 
encourage you in writing them. I am glad you have 
met Mohl ^ and Marmier. I do hope you will see the 
Calvos, pere et fils, and especially Chabrol. I wish I 
had felt authorized to give you a letter to Labou- 
laye. ... 

You must excuse my apparent censures, for it is 
all done from my intense interest in you, and devo- 
tion to your welfare. 

Your devoted father, 

R. H. D., Jr. 

1 M. Mohl, a member of the Academy. Mme. Mohl kept up the 
last of the "Salons" at Rue de Bee. 



LETTERS FROM A FATHER TO A SON 493 

Boston, Nov. 1, 1875. 
My dear Son, — 

Your letters and journals are so punctual and faith- 
ful that we hardly know how to express to you the 
pleasure and comfort they give us. This is delightful 
to us and useful to you, for it is to you a good lesson 
in writing, and your style is working loose, and becom- 
ing so easy that we feel sure that the writing of the 
journals is not distressing to you. 

Your last two journals put you just where I wished 
you to be, and satisfy me fully, — in a good, well- 
educated French family, with a daily tutor besides, 
and, as you say, your lessons in painting are lessons 
in French. 

I greatly regret that you have not seen Laugel.^ 
No man in Paris could be more useful to you. He is 
a writer, private secretary to the Due d'Aumale, and 
his wife one of the cleverest of women. And I wish 
you could have seen le Viscomte de Chabrol. When 
in America, he was the best possible specimen of a 
young noble. It was he who, at our house, insisted 
in giving the pas to Agassiz, and when A. said, "I 
recognize your rank," replied, "What have I to offer 
to merit but my rank?" 

Hear some French preachers. (Chabrol is a member 
of the Assembly.) 

Was it not amusing to hear Frenchmen express the 
opinion that Bismarck is overrated.'^ 

Your affectionate father, 

R. H. D., Jr. 

^ I saw M. and Mme. Laugel later. 



494 RICHARD HENRY DANA, JR. 

Boston, Nov. 9, 1875. 
My dear Boy, — 

I am glad you are to stay in Paris through Novem- 
ber. Indeed, I do not care how far into November 
you stay, for you will gain faster in your French 
every day after the first four or six weeks. And you 
do not know how invaluable it will be to you in the 
Levant, Egypt, Constantinople, Greece, and the 
Adriatic. Besides, I look to the future. If you get 
familiar with French, you will keep it up, and be 
able to use it later in life, when knowledge of it may 
be of great service to you. 

In my last, I sent you a letter to Mr. Marsh, and 
will send one to General Stone in Egypt. I will get 
your mother and sisters to write you about Avignon, 
Nismes, and Aries, which must be seen, at least two 
of them. Then, if you go by way of Lyons, try to see 
the French manufacturing systems at work, and go 
up the hill of Fourvieres, which Everett says has no 
superior in Europe for view. 

The late elections bring the Republicans back, so 
that the Presidential election is a neck and neck 
matter, and both parties are on their good behavior, 
— which is the best state of things possible. 
Your affectionate father, 

R. H. D., Jr. 

Boston, December 15, 1875. 

My dear Son, — 

Your French journals have interested me extremely, 
for I do feel sympathy with the French and hope for 



LETTERS FROM A FATHER TO A SON 495 

their future, and much that you tell us of them is new, 
while, in England, most was familiar. I knew you 
would like and value Laugel. M. Marmier ^ has been 
very, very kind and attentive. A virtuous, kind 
Frenchman is a very attractive person. 

Make the most of Mr. Marsh, and he will get you 
into the Italian Parliament, and introduce you to 
political leaders, who usually speak French if not 
English. Everything historical, in art and architec- 
ture and monuments, will interest you deeply in 
Rome, and so will all art, but, at the same time, try 
to learn what you can of present Italy, social, political, 
and religious. Minghetti's speech shows that they 
have got hold of the "Alt Catholic" idea that the 
contest is with the Curia and not with the Church 
Catholic. 

We have just had a great municipal triumph. 
Cobb has made an excellent mayor, and received an 
address from some twenty-five hundred of our best 
citizens asking him to serve again. The lower element 
combined against him, in the interest of ring rule, 
and raised a good many popular war-cries against 
him. They succeeded in carrying both political 
conventions. Their candidate was a young lawyer, 
named Halsey I. Boardman, a Republican, of no 
professional standing, but of considerable munici- 
pal experience in the Common Council, etc., a light- 
weight, of no character, and ready for ring rule. The 
Republican Convention nominated him by one ma- 
jority, and the Democratic by a very large ma- 
jority, on an arrangement dividing all offices, as 

1 A member of the Academy and a friend of I^ongfellow. 



496 RICHARD HENRY DANA, JR. 

aldermen, etc., between the parties. It was the most 
ominous thing that has happened in our municipal 
affairs. All bad men seemed in it, and a good many 
respectable Democrats and Republicans were influ- 
enced by the obligation of regular nominations. The 
"Citizens" held a meeting of about two hundred 
selected men, and made out a general ticket of Re- 
publicans and Democrats with Cobb at the head, and 
organized war in each ward, and the young men took 
hold with vigor and tact. It was a fair trial of strength 
between good government, order, respectability, and 
property on the one side, and the lowest elements, 
aided by politicians and wire-pullers and mere parti- 
sans, on the other. 

The election was yesterday. We threw the largest 
vote ever thrown in a city election, and Cobb is re- 
elected by a majority of nearly three thousand, and 
the Citizens' ticket for aldermen, school board, etc., 
by nearly the same. 

This is a striking result, and most encouraging, 
when we consider that Boardman had the regular 
nomination of both parties. It is also encouraging 
that every newspaper in Boston supported Cobb 
except the Globe, which is erratic and Butlerized. 
Our new ward. No. 11, gave Cobb the largest major- 
ity, nearly eleven hundred. It embraces all between 
Arlington Street, Columbus Avenue, and the Charles 
River. Roger Wolcott was an inspector, and I saw 
several of your friends acting as vote-distributors. 
The merchants say the result is worth millions to 
Boston. It proves that Boston can be relied upon. 

Your affectionate father, 

R. H. D., Jr. 



LETTERS FROM A FATHER TO A SON 497 

Boston, Jan. 30, 1876. 
My dear Boy, — 

Your letter and journal were dated at Palermo, and, 
as you were thence to go to Athens, we must expect a 
long interval before hearing again. 

I have taken great satisfaction in your journals in 
the south of France, Italy, and Sicily, for I feel that 
all you see there must be so much more novel and 
strange to you than Great Britain and even France, 
especially as I have never been in the south of France, 
or over the Cornice Road, or in Genoa or Leghorn, 
Naples or Sicily. 

I was glad to have you recognize so fully the advan- 
tage your French was to you. You know how stoutly 
and persistently I fought for my plan of having you 
devote some weeks to talking French, against a good 
deal of discouragement. Many, even Lowell [James 
R.], seemed to think a few weeks would not do much 
for you. I knoiv that six or eight weeks' devotion to 
French, in a good French family, to a person as far 
advanced as you were, made just the difference be- 
tween your speaking French, or not trying to speak 
it, all over Europe. It is the first strokes in swim- 
ming. If a man can really swim six strokes, he will 
venture into deep water, and swim better and better, 
while if he cannot really swim consecutive strokes, he 
will keep in shoal water. I hope you will keep up 
your French all the time you are on the Continent, 
by talking, reading, and writing. 

Your journals improve in ease and fulness. The 
writing them is a good rhetorical exercise for you, the 
best, and "La sempre fedelissima" will always see 
to your spelling, which candor compels me to say 
needs a good deal of seeing to. 



498 RICHARD HENRY DANA, JR. 

You are observant of nature, science, and art, — 
of things that stimulate inquiry and reasoning, but 
you are not observant of things otherwise. You must 
try to cultivate more attention to sounds and words 
and names. You must try to remember the names of 
persons and places, and notice how they ate pro- 
nounced. The right pronunciation and application 
of proper names is one of the marks of an educated 
man. . . . 

Your affectionate father, 

R. H. D., Jr. 

361 Beacon St., Boston, 

Friday, Feb. 20, 1876. 

My dear Son, — • 

... I commend your spirit in taking second-class 
passage, but I would not do it in steamers. There, the 
distinction is great, marked, and shuts you off from 
all intercourse with the other passengers. On railways 
there is no objection to it. . . . 

Your Athens journal is intensely interesting. It 
is a vision of — not romance, but long ago reality 
of the noblest kind. And are you not glad you read 
so much Greek in college? 

I am glad you went to Egypt. It is too curious to 
be lost, and is losing its old-world characteristics 
fast. . . . 

Don't give up an important matter of instruction 
or feeling for a small saving. Save rather, as you have 
done, in walking, boarding cheap, in plain dress, and 
in buying nothing merely ornamental, and nothing 
in the way of art, however beautiful. . . . 
Your affectionate father, 

R. H. D., Jr. 



LETTERS FROM A FATHER TO A SON 499 

Boston, March 28, 1876. 
My dear Son, — 

I suppose the vote this evening will be against me.^ 
I have no hope of confirmation. The combination of 
Cameron and Morton, the two leaders of the Com- 
mittee, in the Senate, and of Butler and Beach Law- 
rence outside the Senate, and the readiness of the 
Democrats to vote so as most to trouble the Admin- 
istration will be too much for the gentlemen "out- 
side politics." . . . 

I should have liked the rest, leisure, and dignity 
of the post, and the chance it would have given me 
to study international law, and the change of life 
for me and your mother. "But a Disposer whose 
power we are little able to resist, and whose wisdom 
it behooves us not at all to dispute, has ordained in 
another manner, and whatever our querulous weak- 
ness may suggest, a far better." 

The conduct of the Committee Mr. Fish calls, in 
a letter to me, "scandalous," and in a letter to Judge 
Hoar by a harder name. The press and the people 
have confirmed the nomination, whatever the Senate 
may do. Mr. Fish says that no nomination, for years, 
has been received by the people so well. It has been 
defeated by the vile Cameron, whom Lincoln dis- 
missed from the War Department for fraud, the in- 
famous Butler, the unscrupulous, vindictive Beach 
Lawrence, acting through secret committees and 
secret sessions. 

Don't let this make you any the less patriotic. It 
only shows you how much more the country needs 

' In the United States Senate, on confirmation of his appointment 
as Minister to England. See Biography, vol. ii, pp. 362-377. 



500 RICHARD HENRY DANA, JR. 

the services of good men, — how much the rising 
generation has to do for their state. 
Good-bye, my dear boy. 

Your affectionate father, 

R. H. Dana, Jr. 

Did you [see] the spontaneous request of nearly 
all the members of both branches of the Legislature, 
Speaker, President of Senate, all judges and ex-judges, 
mayors and ex-mayors, and citizens of all parties, for 
my confirmation? It was wonderful ! 



Boston, April 30, 1876. 
My dear Son, — 

Last week we had a State Republican Conven- 
tion, as you see by the Daily Advertiser I sent you. 
The result was perfect. The Butler, Custom-House, 
machine men did their utmost to defeat me.^ They 
went so far as to put Judge Hoar, their constant 
enemy, on their ticket. The only effect was to give 
Judge Hoar some sixty or eighty votes more than I 
had, while I had some two hundred more than was 
necessary for a choice, and far ahead of all others. 
It was a decided rebuke to the Senate, for Hoar and 
I had each been rejected by the Senate, and an utter 
defeat of the Butler gang. Think of four such men 
as Hoar and I, President Chadbourn (Williams Col- 
lege), and John M. Forbes, sent with full powers and 
authority to fill our own vacancies, and no instruc- 
tions ! 

1 As delegate at large from Massachusetts to the Republican Presi- 
dential Convention of 1876. 



LETTERS FROM A FATHER TO A SON 501 

Massachusetts heads the column. Her delegates 
are "reformers," and known to be pledged to no man, 
and with no axes to grind, and claiming no Massa- 
chusetts man for any post. 

Your affectionate father, 

R. H. D., Jr. 



BIBLIOGRAPHY 

[The following are the more important of Mr. Dana's publications, including in a very few 
instances publications by others, to which Mr. Dana's were a reply, omitting, however, Mr. Dana's 
briefs and arguments in law cases, unless they were of unusual public interest. In some cases, the 
original publications do not state that Mr. Dana is the author; but in every instance in which such 
are included in this hst, we have evidence in the handwriting of Mr. Dana or of his father, or of 
both, and sometimes other corroborative evidence of the authorship. Copies of many such of the 
following as are in pamphlet form, and are not printed in the preceding collection, may be found in 
the Congressional Library, Washington, D. C, the Harvard College Library, the Boston Athenaeum, 
and in the public libraries of Boston, New York, Chicago, San Francisco and Los Angeles. — 
R. H. D., 3d.l 

1839 

Cruelty to Seamen: Case of Nichols & Couch. In American Jurist, October, 
1839, pp. 9£-107; Life and Letters of Judge Story, vol. ii, pp. 312-316 
(Little, Brown & Co., Boston, 1851, 2 vols.). Also in pamphlet form without 
author's name. 

1840 

Two Years Before the Mast. (Harper Brothers, New York, 1840). Author's 

Edition, with chapter "Twenty-four Years After," Houghton, Mifflin & Co. 

At least 52 Editions by 31 Publishers in U. S., Gt. Britain, and Europe. See 

Adams's Life of Dana, vol. i, pp. 25-27. 
Seaman's Friend Society, Remarks before. In Mercantile Journal, Boston, 

May 28; Boston Courier, May 29; Boston Recorder, June 5. 

1841 

Seaman's Friend: Treatise on Practical Seamanship. Boston, Thomas Groom, 
12mo; Little, Brown & Co., 16mo. Published in England under title. Sea- 
man's Manual: London, Philip Moxon, 1841 (8vo), 1856, 1859, 1867; and 
by Lees Philip & Son (8vo), 1856. 

Seaman's Friend Society in New York, Address before, on May 10. In New 
York Herald, May 11; Boston Recorder, May 28. 

Fugitive Slave Rescue Case: John Torrance, or Massachusetts vs. Higgins. 
In Boston Daily Mail, June 7. 

1842 

Charles Dickens Dinner, Remarks at. In Boston Advertiser, February 3; 
New England Weekly Review, Hartford, Conn., February 12. 

1843 

SoMERs Mutiny, First Letter on, dated January 10. In New York Evening 

Post, January 12 or 13; Boston Atlas, January 17; Halifax Nova Scotian, 

April 10; Adams's Life of Dana, vol. i, pp. 47-58. 
SoMERS Mutiny, Second Letter on. In Boston Courier, August 18. 
SoMERS Mutiny, Third Letter on. In Boston Semi-Weekly Courier, August 

21. 
Washington Allston, Note Denying Truth of Anecdotes about. In Boston 

Atlas, July 22. 



504 BIBLIOGRAPHY 

1844 

Gothic Architecture. In Boston Daily Advertiser & Patriot. 

Visit to Mount Vernon. In Boston Daily Advertiser & Patriot, April 9. 

Justice to the Poor, the Stranger and the Suspected. In Boston Daily 
Advertiser & Patriot, July 22. 

Allston's Belshazzar's Feast. In Boston Daily Advertiser & Patriot, Sep- 
tember 27. 

Episcopal General Convention at Philadelphia, Summary of. In Boston 
Semi- Weekly Advertiser, November 2. 

Architecture. In Boston Courier, November 5. 

1845 

Bishop Onderdonk's Trial. In Boston Evening Transcript, April 5. 

Seamen in the Church: First Letter. In Christian Witness & Church Advo- 
cate, May, p. 47. 

Seamen in the Church: Second Letter. In Christian Witness & Church 
Advocate, May, p. 55. 

American Loyalty: Lecture at Music Fund Hall, Philadelphia. In U. S. 
Gazette, December 10. Pennsylvania Inquirer & National Gazette, Decem- 
ber 10 (This is the notice alluded to in the Biography, vol. i, p. 115). 

Advent Parish and Bishop Eastburn. In Boston Evening Transcript, De- 
cember 20. 

Church of the Advent and Mr. Pollard. In Boston Evening Traveller, 
December 22. 

Bishop Eastburn and his Clergy. In Boston Evening Transcript, December 
23; Christian Watchman, January 2, 1846. 

' 1846 

Church of the Advent, Position of. In The Churchman, January 24. 
Church of the Advent. In Boston Evening Transcript, December 11. 

1847 

Vinton, Major John R., Memoir of. In North American Review (American 

Review & Whig Journal), No. 30, June, pp. 594-602. 
Petition to Congress for More Speedy Trial of Seamen : Leaflet prepared 

by R. H. Dana, Jr. 

1848 

Discoverer of Ether. In Littell's Living Age, No. 201, March 18, pp. 529-571. 
Discoverer of Ether, Report of Massachusetts General Hospital on: Edited 

by R. H. Dana, Jr., with Introduction. 8vo. 
Same translated into French. "Rapport . . . sur le Decouvert d'Ether." 

8vo. 
Ether Controversy: Various Data. 12mo. 
Free Soil Meeting in Boston, July 7: Remarks on Taking the Chair. In 

Boston Daily Whig, July 8; Boston Daily Whig, July 11. 
Buffalo Free Soil Convention, Speech on. In Boston Daily Republican, 

October 12. (Printed in this collection.) 
Free Soil Meeting at Faneuil Hall: Speech as Presiding OfiBcer. In Boston 

Daily Republican, November 6. 

1849 

Free Soil Rally, Tremont Temple: Resolutions. In Boston Daily Repub- 
lican, November 12. 
Niphon's Crew: Argument for the Seamen. 8vo, 12 pp. 



BIBLIOGRAPHY 505 

1850 

First Impressions of a bAiLOR. In Boston Book, 1850, Ticknor & Fields, 16mo, 
pp. 279-285. 

Washington Allston: Lectures on Art and Poems. Edited with Introduction. 
12mo, Baker & Scribner, N. Y., 1850. 

Free Soil Meeting of February 27, Call for. Leaflet and in papers. 

Free Soil Convention at Faneuil Hall to sustain the Wilmot Proviso, 
February 27. Address to Members of Congress. Quarto sheet, 2}^^ pp. In 
Boston Semi- Weekly Republican, March 2, p. 1. (Printed in this collection.) 

Speech at the Same. In Boston Semi-Weekly Republican, March 3, p. 2. 

Worcester, Speech at, April 5. In Boston Advertiser, April 14. 

Proscription of R. H. Dana, Jr., Articles calling for. In Boston Adver- 
tiser, May 10; Advertiser & Courier, June 2; Transcript, May 7, 13, 14, 15, 
16 and 19; Commonwealth, May 13, 16 and 30; Daily Advertiser, June 2. 

Free Soil Platform Abandoned by the Whigs: Letter on. In Boston Daily 
Evening Traveller, August 17. 

Fugitive Slave Law, Faneuil Hall Meeting on: Preamble and Resolutions. 
In Boston Atlas, October 15, p. 2. 

Free Soil Meeting at Faneuil Hall, November 6: Resolutions. In Boston 
Daily Chronotype, November 7. 

Great Gravitation Meeting: Parody on the Whigs and the Fugitive Slave 
Law. In New York Tribune, November 22; Boston Chronotype, November 26. 
(Printed in this collection.) 

Church of the Advent: Prescott Defended on Heresy Charges. In Boston 
Daily Advertiser, November 30; Boston Christian Register, December 14. 

1851 

Fugitive Slave Rescue Trials: Defense of Charles G. Davis, Esq. Wright & 
Potter, Boston, 1851, 8vo, pp. 23-37. Closing Argument, Commonwealth 
and Emancipator, February 28 and March 1 . In Boston Daily Atlas, February 
22; Daily Evening Traveller, February 21; Boston Daily Commonwealth, 
February 27 and 28. (Printed in this collection.) 
Essex Railroad Case: Argument before the Committee of the Legislature. 

In Boston Daily Commonwealth, March 29. 
Personal Liberty Bill: Drawn by Charles Sumner and R. H. Dana, Jr. In 

Boston Daily Commonwealth, March 31. 
Worcester, Address on "The Times." In Worcester Spy, April 7; Boston 

Daily Commonwealth, May 2; Boston Evening Transcript, May 16. 
Fugitive Slave Case: Thomas Simes. In Boston Daily Evening Traveller, 

April 11; Semi- Weekly Advertiser, April 16; Boston Daily Bee, April 14. 
Mystic River Improvement: Argument before Committee of Massachusetts 

Legislature, April 17. Pamphlet. 
George S. Hillard, under title "X": Attack on R. H. Dana, Jr., for Wor- 
cester Speech. In Boston Advertiser, May 8, 10 and 12; Boston Daily Com- 
monwealth, May 16. 

"Sigma." In Boston Evening Transcript, May 7, 13 and 15; see also do.. 

May 14. 
Haven's Letter. In Boston Evening Transcript, May 19. 
Editorial on Attack. In Daily Courier, June 2; Boston Daily Advertiser, 

June 2; Boston Daily Commonwealth, June 16 and 30. 
Editorial Note on Same, and Extracts. In New York Evening Post, 

June 30. 
See also Boston Commonwealth, June 5; New York Evening Post, July 1; 
Boston Daily Morning Commonwealth, July 2; Boston Daily Evening 
Commonwealth, July 10. 
Hillard's Answer. In Boston Advertiser, July 11. 



506 BIBLIOGRAPHY 

Attack on Dana and Others, Advising not to Employ, etc., by Son of a 

Merchant. In Daily Commonwealth, June 5. See also Daily Commonwealth, 

June 16; Weekly Messenger, July 30. 
Fugitive Slave Rescue Trials: Rescue of Shadrach: Scott Case. In Daily 

Commonwealth, June 5 and 6. 
Fugitive Slave Rescue Trials: Hayden's Case, Opening Argument. In Daily 

Morning Commonwealth, June 12. 
Fugitive Slave Rescue Trials: Shadrach: Lewis Hayden Defense. In Boston 

Evening Commonwealth, June 16; Boston Evening Traveller, June 17. 
Fugitive Slave Rescue Trials: Robert Morris Case. In Daily Morning Com- 
monwealth, June 19, November 8 and 10. 
Story, Reminiscences of Judge Joseph. In Life and Letters of Judge Story, vol. 

ii, pp. 317-322. 
Story Association, Address at. In Boston Morning Commonwealth, July 

17. See also July 15 and 16. 
Story Association, Speech at Dinner of. In Boston Advertiser, July 21; 

Boston Weekly Messenger, July 30. 
Libel Suit vs. the Commonwealth. In Boston Commonwealth, September 

3-8. 
Charles Adams Whitcomb, Obituary on. In Boston Morning Journal, 

October 23. 
Elizabeth Earl Cooke, Obituary on. In Boston Traveller. 
Lewis Gray, Obituary on. 

1852 

Advent, Parish of: Fresco tt Heresy Trial: Argument. Abstract in Boston 
Evening Traveller, February 12, 13, 14, 19 and 23; New York Churchman, 
March 20. Full report in New York Churchman, April 3. Extract covering 
full statement on Dr. Croswell, in Boston Evening Traveller, April 19. 

Literary Societies of Geneva, N. Y., Address before. In Geneva Courier, 
July 16; Geneva Gazette, July 16; Geneva Gazette, July 21. Extract in 
Boston Evening Transcript, September 10. 

Washington Allston: Lectures on Art and Poems. 12mo. Edited by R. H. 
Dana, Jr. 

1853 

Horace Binney Wallace, Obituary on. In Law Reporter, March, N. S., 

vol. v. No. XI, pp. 659-660. Also extracts in Register and other papers. 
John P. Hale, Speech at Complimentary Dinner to, on the Buffalo Conven- 
tion Platform. "In 1848, truisms; in 1850, treason." In Boston Common- 
wealth, May 7. 
Excess of Freedom: Letter to Free Democracy Meeting, September 27. 
Hon. John P. Hale, Address to, on Presentation of Medal at Tremont Temple, 

October 13. 
Massachusetts Constitutional Convention (1853) Debates: — 

Speech on Right of Habeas Corpus. Vol. iii, pp. 378-381, 476-478, 480- 

481. 
Against Juries as Judges of the Law. Vol. iii, 451-454, 507-509. 
Town Representation in the Legislature. Vol. i, 941-949; vol. ii, 

134-136, 185, 450-452. 
Appointment and Tenure of the Judiciary. Vol. ii, 756-770; vol. iii, 
180-187, 192, 207-208, 228, 234, 235, 626-627, 630-632. (The chief 
address printed in this collection.) 
Loan of the State Credit. Vol. ii, 674-677. 
Militia. Vol. ii, 27, 98-102. 



BIBLIOGRAPHY 507 

Old Laws Continued. Vol. i, 356. 

Elections by Plxhiality. Vol. i, 385-393; vol. iii, 143-145, 275-277, 278. 

Qualifications of Voters. Vol. i, 684-688; vol. ii, 511-517. 

Election of Judge of Probate. Vol. i, 705-706, 708-711, 719; vol. ii, 

470-471, 534, 539-540. 
Sheriffs Subject to the Governor. Vol. ii, 468-471. 
Constitution of 1853, Speech in Favor of the Adoption of. Cambridge, No- 
vember 1. 
Francis Dana (2d), Esq., Reminiscence. In Boston Daily Advertiser, De- 
cember 29. 

1854 

Fugitive Slave Rescue Trials: Anthony Burns: Argument. "Boston Slave 
Riot & Trial of Anthony Burns," 8vo, Boston, Fetridge Company. In Boston 
Daily Commonwealth, May 26; Daily Evening Traveller, May 27, p. 2, May 
29, June 3; New York Evening Post, June 3; New York Semi-Weekly Even- 
ing Post, June 6; Boston Daily Atlas, June 22. (Printed in this collection.) 

Reply declining Offer in Letter of Wendell Phillips for Fee for his 
Services in Defending Anthony Burns. In Boston Commonwealth, June 15. 

The Bible in the Public Schools: Argument. In Boston Traveller, July 22. 
12mo, Boston, Wright & Potter, 1855. 12mo, Boston Sabbath School So- 
ciety, Cornhill, Boston, 1855, 59 pp. (Printed in this collection.) 

Professor Greenleaf, Resolutions on Death of, at Meeting of Suffolk Bar. 

1855 

Judge Loring, Remarks against the Removal of, before the Committee on 

Federal Relations of the Massachusetts Legislature, March 5. 8vo, Boston, 

Alfred Mudge & Son. Also in Boston Daily Advertiser, March 7; Boston 

Evening Transcript, March 7. 
Worcester Republican Convention: Address to the People of Massachusetts, 

and Resolutions. In Worcester Spy, September 21. 
Speech of R. H. Dana at Above. Abstract in Boston Atlas, September 22. In 

full in Boston Evening Telegraph, September 24. 
Report to Citizens op Cambridge on the Worcester Convention. In 

Boston Atlas, October 25. 
Mandamus in Ecclesiastical Cases in America. In Monthly Law Reporter, 

N. S., vol. viii. No. VIII, December, pp. 421-432. 

1856 

Professor Edward Tyrrell Channing, Obituary on. In Boston Daily 
Advertiser, February 15; Cambridge Chronilce, March 8. 

Edward T. Channing: Biographical Notice to Lectures to Seniors in Harvard 
College. 12mo, Boston, Ticknor & Fields. 

Charles Sumner, On Outrage to. "Sumner Outrage." 12mo, John Ford, 
Cambridge, pp. 26-33. Also in Boston Daily Atlas, June 10. 

Benjamin F. Dalton, Defense of. "Complete Trial of Edward O. Colburn 
and Benjamin F. Dalton for^Manslaughter of William Sumner." 8vo, Boston, 
Bumham, Federhen & Company. Dana's Closing Argument, pp. 38-54. 

Call for Free Soil Convention. 

Judge Woodbury Davis, On the Removal of. In Monthly Law Reporter, N. S., 
vol. ix, No. II, June, pp. 61-83. 

1857 

"A Voice from the Main Deck, and Thirty Years' Adventures." By S. Leech. 
Introduction for the 16th Edition. Boston, Whittemore, etc., 1857, Svo. 



508 BIBLIOGRAPHY 

Rev. J. S. Kalloch, Defense of. "Full Report of R. H. Dana's Argument for 
the Defense of Rev. J. S. Kalloch," by Dr. I. W. Ayer, Reporter for the 
Boston Traveller. 8vo, Boston, Federhen & Company. In Boston Daily Bee, 
April 7, 1857. Extra Edition, Boston Daily Bee, April 7, 1857. 

Dalton Divorce Case. "Opening Address and Closing Argument of R. H. 
Dana, Jr., Esq., in the Dalton Divorce Case." 8vo. Office of Boston Daily 
Bee. In Boston Daily Bee, May 11, 1857. 

Seamen, Address on Behalf of. In Boston Evening Transcript, June 13. 

Franklin Dexter, Esq., Remarks on the Death of, at Suffolk Bar Meeting. 
In Boston Daily Advertiser, September 9. 

To^VN OF Belmont, Argument before Massachusetts Legislative Committee 
against Separation of, from West Cambridge. 12mo, Boston, Damrell & 
Moore, 10 pp. 

1858 

Judge Loring, Letter on Removal of. In New York Evening Post. 
Harvard Football. In Boston Daily Advertiser, September 18; New York 
Evening Post, September. 

1859 

"To Cuba and Back, a Vacation Voyage." 12mo, Boston, Ticknor & Fields, 

288 pp. Smith, Elder & Co., London, 1859. French Edn. 1860. Houghton, 

Mifflin & Co., Boston, 1887. 
Sandwich Islands, Missions in, etc.; Letter to New York Tribune, re-published 

by the American Board of Commissioners for Foreign Missions. Quarto 

Leaflet. 
Ballot in the United States: Letter to Lord Radstock. In London Times, 

August 27. 
RuFUS Choate, Remarks before Suffolk Bar Association on Death of. Works 

of Rufus Choate, by Samuel Gilman Brown, vol. i, p. 252. Also in Daily Alta 

California, San Francisco, September 9; and Boston papers. (Printed in this 

collection.) 
Ship Mastiff Burned at Sea. In Daily Alta California, San Francisco, 

November 5; Boston Weekly Courier, November 18. 

1860 

Japan, Letter on. In New York Evening Post, August7; Boston Daily Ad- 
vertiser, August 11. 

Republican Meeting at Cambridge : Speech as Presiding OflBcer. In Boston 
Daily Advertiser, November 3. 

1861 

Reasonable Conciliation with the Southern States : Speech at Manchester, 
N. H., just prior to the breaking out of the Civil War; February 19. 8vo, 
Boston, Redding & Company. Also in Boston Daily Advertiser, February 20. 

Repeated at Cambridge, Mass. In Boston Daily Atlas & Bee, February 12. 

Flag-raising at Camp Cameron: Address. In Boston Daily Advertiser, June 29. 

Mason & Slidell — Trent Affair: Letter on. In Boston Daily Advertiser, 
November 18. 

President op the United States (Lincoln), Speech on, before Ancients & 
Honorables. 

1862 

PiCKMAN & Silsbee, Claimants, U. S. vs., 4261 Prize : Argument. Pamphlet, Svo. 
Washington's Birthday, Address on. Cambridge Chronicle, March 1. 



BIBLIOGRAPHY 509 

Fourth of July Address: Faneuil Hall Dinner. In Boston Journal, July 5. 

Massachusetts Republican Convention at Worcester: Report to Citizens 
of Cambridge. (Convention at which Mr. Dana, by his speech, prevented 
resolutions disloyal to President Lincoln.) In Boston Journal, September 29. 

1863 

Prize Case; Amy Warwick: Brief before U. S. Supreme Court. Boston, 8vo. 
Also in Veeder's Legal Masterpieces, Keefe Davidson Company, St. Louis, 
1903, vol. ii, pp. 907-928; 2 Black, U. S. Supreme Court Reports, pp. 650-665. 

Liberal Contribution from Abroad. In Boston Advertiser, January 7. 

Republican Ratification Meeting, Providence, R. I., Speech at. In Provi- 
dence Journal, March 31. 

Seamen's Widow and Orphan Association, Address before. In Salem Regis- 
ter, April 2. 

Republican Ratification Meeting at Cambridge, Speech at. In Boston 
Daily Advertiser, October 6. 

1864 

Prize Decisions: " Enemy's Territory and Alien Enemies — What the Supreme 
Court Decided in the Prize Causes." Boston, 8vo, Little, Brown & Company, 
11 pp. (Printed in this collection.) 

Russian Fleet, Complimentary Banquet to Rear Admiral Lessoffsky and 
Officers of, on June 7. Boston, 8vo, J. E. Farwell & Company; Remarks of 
R. H. Dana, Jr.. pp. 33-38. 

JosiAH QuiNCY, Remarks before Historical Society on the Death of. In Boston 
Evening Transcript, August 30. Also in Proceedings of the Massachusetts 
Historical Society, vol. vii, pp. 398-405. 

Chief Justice Taney, Remarks on the Death of, on October 17. Bvo, Boston, 
Wright & Potter Company. 

President Lincoln, Meeting of New York Capitalists in Support of: Speech at. 
In New York Times, November 5. 

Judge Sprague, A Tribute to, at the Dinner to Officers of the Kearsarge, No- 
vember 5. Boston, 8vo, Alfred Mudge & Son. Also in Boston Daily Adver- 
tiser, November 16. 

1865 

Edward Everett, Life and Services of: Address on, February 22. 8vo, 70 pp., 
Cambridge, Seaver & Francis; also quarto edition. Also Remarks on, in 
Massachusetts Historical Society Proceedings, vol. viii, pp. 152-154; de- 
livered at a special meeting, January 20. 

Winthrop Square Meeting, Speech at. April. 

Assassination of President Lincoln, Speech on. In Boston Daily Advertiser, 
April 18; Boston Journal, April 18. 

Permanent and Honorable Peace, Speech at the Old South Meeting on Basis 
of. In Boston Transcript, April 2G. 

Western Visitors, Speech at Dinner to. In Boston Daily Advertiser, June 10; 
Boston Journal, June 10. 

Reconstruction of Southern States: Faneuil Hall Address to the People 
of the United States, prepared by R. H. Dana, Jr., adopted June 21. Boston, 
8vo, 6 pp. In Boston Daily Advertiser, July 10; London Times; translated 
into French and printed in the French papers. (Biography, vol. ii, p. 334.) 

Grasp of War Speech: Meeting in Faneuil Hall on Reconstruction, in Support 
of the above Address, June 21. 8vo, 4 pp. In Boston Evening Courier, June 
22; Boston Daily Advertiser, June 22; Boston Journal, June 22; Boston 
Evening Transcript, June 22; Commonwealth, June 24. Also reprinted in 



510 BIBLIOGRAPHY 

various other papers in America, England and France. (Printed in this col- 
lection.) 

Harvard College, Board of Overseers, Resolutions presented at. In Boston 
Daily Advertiser, September 22. 

United States Navy, Speech before Officers and Sailors of. 

1860. 

Notes to Wheaton's International Law. 4to, Little & Brown, 1 vol. [New 
matter, in condensed style, about equal in length to the original work.] 

Lowell Institute; Lectures on International Law: 12 Lectures. Reported in 
Boston Post, 1866-67. 

Seventeenth of June Celebration at Arlington, Speech at. 

1867 

Usury Laws, Speech on the Repeal of, in the House of Representatives of 
Massachusetts, February 14. 8vo, Boston, Wright & Potter, 30 pp. 8vo, 
New York, Cowan, McClune & Company, 23 pp. (Printed in this collection.) 

Equalization of Bounties, Speech against Bill for, in Massachusetts Legis- 
lature. In Boston Daily Advertiser, May 1. 

Governor John A. Andrew, Speech on the Death of. In Boston Daily Adver- 
tiser, November 5. 

Liquor Question, About the Attitude of Parties on: Speech at Republican 
Caucus of Legislators, December 21. 

1868 

Emancipation, Speech on, at Tremont Temple. In Boston Journal, January 2. 
Intoxicating Liquors, Act to Regulate Sale of: Report of Committee of the 

Judiciary of Massachusetts Legislature. House Document No. 299, May 7, 

8vo, 8 pp. 
Decoration Day Address at Cambridge. In Cambridge Press, June 6. 
Legislature of 1868. In Boston Daily Advertiser, June 22. 
W. T. G. Morton, Discoverer of Ether, Tribute to. In Boston Daily Advertiser, 

August 11. 
Republican State Convention at Worcester, Speech at, and Resolutions. 

In Boston Daily Advertiser, September 10. 
Republican Demonstration in Boston, Speech at. In Boston Daily Adver- 
tiser, September 15. 
Rally at Gloucester in Campaign against Gen. Butler, Speech at. In 

Gloucester Telegraph, October 17. 
Acceptance of Nomination to Congress, 5th District, against Gen. Butler 

on a Sound Money Platform, Speech on. In Salem Gazette Supplement, 

October 23. 
Middleton, Massachusetts: Meeting in Campaign against Gen. Butler for 

Congress, and his Repudiation of the Platform: Speech of October 26. 8vo, 

11 pp., double column. Also in Salem Gazette Supplement, October 30. 
Golden Rocket: Argument of R. H. Dana, Jr., before the Supreme Court of 
it Maine. Law P. vol. ii. 

1871 

Unity of Italy. Meeting at Academy of Music, New York. Pamphlet, 8vo, 
7 pp., January 7. 

Boston, Hartford & Erie Railroad Bondholders, Argument of, before Com- 
mittee of Massachusetts Legislature on Railroads. April 14. Boston, 8vo, 
Wright & Potter, 1876. 

How We Met John Brown. Atlantic Monthly, July, pp. 1-9. Also in Life by 
C. F. Adams, vol. i, pp. 145-164. 



BIBLIOGRAPHY 511 

History of Admiralty Jurisdiction in the United States. In American 
Law Review, vol. v, July, pp. 581-G21. 

1872 

Morse, Samuel F. B., Speech at Faneuil Hall Meeting on Death of. In Boston 

Daily Advertiser, April 17; Boston Daily Evening Transcript, April 17. 
Colored Citizens of Boston, Letter to, on President Grant. In Boston Daily 

Advertiser, August 20; New York Evening Post, August 21. 
Fugitive Slave Cases and R. H. Dana, Jr., by Lewis Hayden. In Boston 

Daily Advertiser, September 10. 
Old South Argument. 8vo, double column, 7 pp. In Boston Daily Advertiser, 

December 2. 

1873 

Report of the Visiting Committee of Overseers of Harvard College, 
for the year 1872-73. 8vo, 35 pp., John Wilson & Son, Cambridge. 

1874 

Right to the Protection of the Flag: Case of the Virginius: Letter on. In 
Boston Daily Advertiser, January 6. 

Charles Sumner, Remarks on the Death of, and Resolutions, at Faneuil Hall 
Meeting. In Boston Daily Advertiser, March 16. 

Judge E. R. Hoar: Address to Republican Members of the Massachusetts 
Legislature on behalf of the Election of Judge Hoar to the United States Sen- 
ate. Published by Committee in favor of Judge Hoar's election, March 30. 

Report of Visiting Committee of Overseers of Harvard College, for 
the Year 1873-74. 8vo, John Wilson & Son, Cambridge. 

Judge Benjamin R. Curtis, Remarks on the Death of. (Died September 15, 
1874.) 

" Subsoiling," or The Voters as against the Prepared Candidates. In New York 
Nation, October 22. 

1875 

Mr. Sumner's Successor to the United States Senate. In Boston Daily 

Advertiser, January 13. 
Rhetorical Training. In New York Nation, March 11. 
International Law, Proposed Changes in. In New York Nation, March 11. 
Centennial Oration at Lexington, Massachusetts, April 19. 8vo and quarto, 

Franklin Press, 19 pp. In Boston Daily Advertiser, April 20. 
Lexington and Concord: Collection of Data. Boston Public Library, No. 

2350-19. 
Report of Visiting Committee of Overseers of Harvard College, for the 

Year 1874-75. 8vo, 12 pp., John Wilson & Son, Cambridge. 
Admiralty Liens and Material-men: The Latawana. In American Law 

Review, July, pp. 638-607. Pamphlet, 8vo, 30 pp. 
Dr. G. B. Loring's Candidacy for Governor. In Boston Daily Advertiser, 

September. 
Republican Ratification Meeting, Faneuil Hall, Address at, as President. 

In Boston Daily Advertiser, October 8. 
Boston Back Bay River Park, Remarks on. In Boston Daily Advertiser, 

November 5. 

1876 
Stephen Decatur, Tribute to. In Boston Daily Advertiser, January 13. 



512 BIBLIOGRAPHY 

Public Parks, Meeting in Favor of. Address at. In Boston Daily Advertiser, 

June 8. 
Republican Meeting at Cambridge. In Boston Daily Advertiser, November 3. 
Republican Meeting at Boston. November. 

1877 

Points in American Politics: Modes of Presidential Election — Ascertaining 
the Presidential Vote — Tenure of Office and Re-eligibility of the President — 
Civil Service Reform — Seats of Cabinet Ministers in the Two Houses — Re- 
sumption of Specie Payments — Withdrawal of Federal Troops from South- 
ern States. In North American Review, January, 1877, pp. 1-30. 

Halifax Fisheries Commission: Argument of R. H. Dana, Jr., on behalf of the 
United States. Public Documents. Halifax Commission 1877, U. S. Govt. 
Printing Office 1878, vol. iii, pp. 1652-1705. Also separate pamphlet, 8vo, 
82 pp. (Printed in this collection.) 

Francis Dana: Biographical Sketch. Pamphlet, Philadelphia; also in Pennsyl- 
vania Magazine of History and Biography, No. 1, vol. i. 

1878 

Lord Kinnaird, Tribute to. In Boston Dally Advertiser, February 13. 
Chief Justice Bigelow, Tribute to. In Boston Daily Advertiser, April 19. 

1880 

Nullity of the Emancipation Edict: The Peculiar Form and Manner of 

What had a great Moral and Practical Effect. In the North American Review , 

August, pp. 128-134. 
Sketch of American Diplomacy. In Scribner's Monthly Magazine, August, 

pp. 616-621. 
Leonard Woods. In Scribner's Monthly Magazine, November, pp. 138-144. 
Emancipation Proclamation : Answer to Criticisms. In Springfield Republican, 

December, 1880, or January, 1881. 

1882 

Judge Samuel Sumner Wild, Memoir of, by Gardner White. Letter of R. H. 
Dana, Jr., in pp. 14-21. 8vo, John Wilson & Son, Cambridge, 

1890 

Biography of Richard H. Dana, Jr., by Charles Francis Adams. Houghton, 

Mifflin & Company, Boston, 1890, two volumes, 8vo, 814 pp. 
Revised Edition, ditto, 1891, two volumes, 8vo, 799 pp. 

1891 

A Voyage on the Grand Canal of China. In the Atlantic Monthly, vol. Ixvii, 

No. 403, May, pp. 600-609. 
Richard Henry Dana. By Mr. Hamilton Andrews Hill; containing extracts 

from Mr. Dana's writings and conversation. Andover Review, May, pp. 482- 

496. 



INDEX 



Adams, Charles Francis, Sr., early friend, 12 ; 
Pres. Buffalo Free Soil Conv. 1848, 154; vice- 
presidential candidate and enthusiasm for, 
159-161. 

Adams, Charles Francis, Jr., author of biography 
of R. H. D., Jr. (See Biography.) 

Adams, John, with reference to the Mass. con- 
stitution of 1780, 92; contrasted with Rufus 
Choate, "290. 

Adams, John Quincy, in connection with Mon- 
roe Doctrine, 297-325; the "Father of the 
Monroe Doctrine," 298, 344 (note). 

Admiralty Jurisdiction, history of, in the U. S., 
6, 511. 

Advent, parish of, in Boston, 504, 505, 506. 

Agassiz, Prof. Louis, early friend, 10; did not 
accept Darwinism, 24. 

Alabama Claims, high award for, at Geneva 
basis of large award against the U. S. in the 
Halifax Fisheries case, 351. 

AUston, Washington, uncle by marriage, 8; 
charm and European friends of, 9; one evening 
a week with, 14; Dana's Introduction to Let- 
ters and Poems of, 25, 505, 506; denies truth of 
anecdotes about, 503; on Allston's Belshaz- 
zar's Feast, 504. 

American Loyalt.v, lecture on, 25, 504. 

Amy Warwick. 'See Prize Causes.) 

Andrew, Gov. John A., speech on death of, 1867, 
510. 

Appointment vs. Election of Judges of Probate, 
speech on, at Mass. Constl. Conv. 1853, 507. 

Architecture, Gothic, letter on, 504; general, 
letter on, 504. 

Arlington, speech at, on June 17, 1866, 510. 

Ballot in the U. S., letter to Lord Radstock on, 
508. 

Bancroft, George, early friend, 10. 

Banks, Gen. N. P., in Mass. Constl. Conv. 
1853, 78. 

Bartlett, Sidney, in Mass. Constl. Conv. 1853, 78. 

Beamis, George, in law school with, 13. 

Belligerency, England's recognition of, in Civil 
War turned by Mr. Dana in Prize Causes into 
acquiescence in right of the U. S. to blockade, 
42, 237-239, 273, 274; powers of, 244-246. 

Belmont, argument against .separation of Town 
of, 508. 

Berkeley, Bishop George, admires philosophy of 
and names street for, 22. 

Bible in the PubUc Schools, The, 1; argument 
on, 69-77, 507. 

Bibliography, 503-512. 

Biography of R. H. Dana, Jr., by Charles Francis 
Adams (Jr.), 1890, a striking one, 1-2; omis- 
sion as to general reading and study in 



evenings, 14-16; as to Thackeray, 16-17; as to 
philosophy, 19-24; corrections of statements 
in, as to Milton, 27; as to Tennyson, 27-28; 
as to Darwin, 28; Mr. Dana not inconsistent, 
as stated in biography, but always claimed the 
Civil War was a great war with a great, de facto 
power, during the War as well as after it was 
over, 235-240. (See also 273-275.) 

Blaine, Secretary James G., Monroe Doctrine 
sets precedent for Roosevelt's San Domingo 
plan, 341. 

Boston Back Bay River Park (1875), 46-47, 
511; (1876), 512. 

Boston, Hartford & Erie R. R. Bondholders, 
Argument for,_1871, 510. 

Bounties, speech against equalization of, 1867, 
510. 

Brent, William, witness against Anthony Burns, 
215-217, 222-223, 226-232. 

Brown, John, views on, 41-42; how we met, 610. 

Buffalo Free Soil Conv. 1848, account of, 149- 
163, 504. 

Butler, Gen. B. F., of Mass., runs against as 
independent on honest money issue, 61; in 
Mass. Constl. Conv. 1853, 78, 87; Dana's 
"kid gloves," 445; campaign against, speeches 
in Gloucester and Middletown, and acceptance 
of nomination, 510. 

Butler, B. F., of N. Y., with Chase of Ohio, 
joint author of Free Soil platform, Buffalo, 
1848, 153. 

Burden of proof. (See York case.) 

Burke, Edmund, reads, 15, 436. 

BurUngame, Anson, in Mass. Constl. Conv., 
78, 97. 

Burns, Anthony, defense of, 32; argument in 
same, 210-233, 507; introduction and general 
remarks, 210-213; Marshall's guard, 210-211; 
identity, 213-217; identity as affected by 
time, seen in Virginia and Boston, 217-222; 
does not owe service to Suttle, claimant, be- 
cause leased by him to Mr. Millspaugh, 222, 
226-230; was there an escape? 226-230; sec- 
tions 6 and 10 of the fugitive slave law as 
applied to the case, 223-226; alleged admis- 
sions of Burns if made were made under 
pressure and threats, 230-232 ; presumption 
of freedom, 212-213, 232-233 ; refusal of fee 
in Burns case, 210-211, 507. 

Byrnes, witness and deputy marshal in Davis 
rescue case, 203, 205. 

Cabinet Ministers in U. S., seats in both Houses 

of Congress, 512. 
Cambridge School, high standard of, 11. 
Camero.n, Camp, speech on flag-raising at, 1861, 

508. 



514 



INDEX 



Canning, George, description of, in English 
Parliament, by "Uncle Edmund," 64-65. 

"Carpet Bag" rule, Mr. Dana opposed to, 235. 

Cass, Lewis, referred to in Free Soil address, 
146-148 ; in account of Buffalo Conv. 1848, 
151, 162 ; cheers for, at Great Gra\'itation 
Meeting, a Parody, 175. 

Centennial Oration at Lexington, 1875, 511. 

Channing, Prof. Edward Tyrrell, early friend, 
10; assistant to at Harvard, 14; account of, 25; 
article on, 507; biographical notice of, 507. 

Channing, William EUery, early friend, 10. 

Charles River Park, development of, in 1875, 
46-47, 511; in 1876, 512. 

Chase, Salmon P., with Butler of N. Y. chief au- 
thor of Free Soil platform, Buffalo, 1848, 153. 

Child, Prof. F. J., early friend, 10; on civil service 
reform, 51; entertaining on ocean voyage, 475. 

China, Voyage on Grand Canal of, 512. 

Choate, Rufus, address on, 1; early friend, 10; 
literary anecdote of, 18; wealth of illustration, 
28; in Mass. Constl. Conv. 1853, 78; abandons 
Free Soil platform, 147; a character in Great 
Gravitation Meeting parody, 167, 171-174; 
address on death of, 188-294, 508; "The age 
of miracles is past," 288; the homeward bound 
Indiaman, 289; basis of his oratory, 290-291; 
aesthetic nature, 291; poetic temperament, 
292; love of philosophy, 293. 

Civil service reform, description of "spoils" 
system, and remedy by, 44-46, 48; advocates, 
"goes deeper into the political life of the nation 
than any other . . . policy," 49-53; its advo- 
cacy a hindrance to political advancement, 
50-53; a vision, 61; judges in the political mil!, 
when elected, 95; bad appointment of Halifax 
Fishery Commission a bit of party "spoils," 
350; lack of permanent under secretaries in 
state and other departments of the IJ. S., 352- 
353; "subsoiling," 511; in Points in American 
Politics, 1877, 512. 

Civil War recognized by Mr. Dana consistently 
as a great war, 5, 43, 235-241. 

Clay, Henry, Clay Whigs at Buffalo Free Soil 
Conv., 150. 

Ckrgyman defended on charges of adultery, 31. 

Cleveland, Pres. Grover, Venezuelan boundary 
question, 330-337. 

Clifford, ex-Gov., chosen as U. S. member of Hal- 
ifax Commission, 349. 

Clifford, Judge Nathan, rebuked for inferior 
appointment, 48-49. 

Coleridge, Samuel Taylor, made real to young 
Dana, from his friend AUston, 8-9; reads, 16; 
limitations of human reason, 21. 

Collision at sea. (See Osprey.) 

Colored citizens of Boston, letter to, on President 
Grant, 1872, 511. 

Commonwealth (newspaper), libel suit against, 
defended by R. H. Dana, Jr., 506. 

Conciliation, reasonable, with southern states 
'61, 508. 

Constitution proposed, 1853, speech favoring, 
507. 

Constitutional Convention tor Mass., 1853 



Dana goes into metaphysics of constitutional 
government, 5-6; gains reputation in, 63; 
speech on judiciary, 78-116; on other subjects, 
506. 

Cooke, Prof. J. P., early friend, 10; changes in 
theory of chemistry, 20. 

Cuba and Back, To, 1859, a vacation voyage, by 
R. H. Dana, Jr., 508. 

Curtis, Judge Benjamin R., remarks on death 
of, 1874, 511. 

Curtis, George T., fairness as U. S. Commis- 
sioner, 204; as witness in rescue case, 197. 

Curtis, George William, Dana as civil service 
reformer before, 46. 

Dalton, Benjamin F., defense of, on charge of 
murder, 507. 

Dalton vs. Dalton, divorce case, argument in, 
29-30, 508. 

Dana, Miss R. Charlotte, sister of R. H. D. , Jr., 9. 

Dana, Edmund Trowbridge, Sr., uncle, literary 
influence, artistic friends and cultivation of, 
8-9; how Johnson revised Boswell's notes, 19; 
journal entries of conversations with stories of 
characters in English Parliament and of mirth 
of Genl. Washington, 64-08. 

Dana, Edmund Trowbridge, 2d, brother, high 
education and brilliancy of, 9; reader of phi- 
losophy, 20. 

Dana, Francis, Sr., grandfather, anecdote of 
Washington at Valley Forge, 66; member of 
Continental Congress, signer of Articles of 
Confederation, appointed minister to Russia, 
Chief Justice of Massachusetts, 440; biograph- 
ical sketch of, 512. 

Dana, Francis, Jr., uncle, 9; reminiscence of, 507. 

Dana, Richard Henry, Sr., father, essayist, poet, 
founder of North American Review, early 
lecturer on Shakespeare, 7; encourages hard 
work at school, 10; encourages manliness, 12; 
reader of philosophy, 20. 

Dana, Richard Henry, Jr., views on American 
aristocracy, 48-61; college rank, 12; Bowdoin 
prizes, 12; bookkeeping, 26; hard work, 26, 
56-57; law school, 13-14; Milton, fondness 
for, 26-27; attitude as lawyer, 31-36; common 
sense views, 41-46; philosophy, 19-24; reason- 
ing on fundamental principles, 3-6, 37-43; 
general reading, 11, 12, 14-20, 23, 24, 26-28; 
religious views, 21-23; views on Thackeray, 
16-17; style, 14, 37; fondness for Tennyson, 
27-28; free soiler, not abolitionist, 41, 59-60; 
powers of debate, 47-48; nominations for 
Congress, 53, 61; offered position of minister 
to Russia, 54; offered judgeship in Mass. 
Supreme Judicial Court, 54; attorney for U. S. 
in the prosecution of Jefferson Davis, 64; 
counsel for U. S. Halifax Fishery Commission, 
54, 344-425; ambassadorship to England 
offered by Grant, 55; professional career, 31- 
36, 55-56; success, 48-49; repartee, and as a 
raconteur, 58; called a man of genius, 59-62; 
as a churchman, 61-62; member of the Mass. 
legislature, 5, 44, 47, 53, 117-144; writes a 
parody on the fugitive slave law as necessary 



INDEX 



515 



for the preservation of the constitution, Great 
Gravitation Meeting, 164-177; differs from 
Sumner on reconstruction, 235; Prize Causes, 
1, 4-5, 41, 235-'241, 273-287; turns the Eng- 
lish acknowledgment of belligerency in the 
Civil War into recognition of powers of block- 
ade, 42, 237-239, 273-274; secret history of 
the Halifax award, 345-354; biography of, by 
Charles Francis Adams (see Biography); short 
memorial of, by Hamilton A. Hill, 1891, 512. 
(See also index generally.) 

Dante Society, an early member of, 24. 

Darwin, attitude towards, 24-28. 

Davis, Charles G., defense of, on charge of aiding 
escape of fugitive slave Shadrach, 178-209, 505. 

Davis, Jefferson, counsel for U. S. against, 
1865, 54. 

Davis, William, in law school with, 13. 

Davis, Judge Woodbury, article on removal of 
for free soil wws, 507. 

Dawes, Henry L., in Mass. Constl. Conv. of 
1853, 78; responsible for bad appointment of 
U. S. Commissioner, Halifax Fishery Com- 
mission, 350. 

Decatur, Stephen, tribute to, 1876, 511. 

Decoration Day address at Cambridge, 1868, 510. 

Delfosse, M. Maurice, arbitrator on Halifax 
Fishery Commission, 345-354. 

Democracy, free D. meeting, letter to, on "Ex- 
cess of Freedom," 506. 

Democrats and democratic party in connection 
with Buffalo Free Soil Convention, 1848, 151, 
163. 

Dexter, Franklin, remarks on death of, 508. 

Dickens, Charles, remarks at dinner to, 503. 

Diplomacy, sketch of American, 1880, 512. 

Drago Doctrine on collecting claims against 
nations by war — Monroe Doctrine, 341-342. 

Eastburn, Bishop, and his Clergy, 504. 
Election or appointment of judges of probate, 

speech on, in Mass. Constitutional Conven- 
tion 1853, 507. 
Elections by plurality, speech on, in Mass. 

Constl. Conv. 1853, 507. 
Electoral reform for choosing president of U. S., 

44, 512. 
Eliot, Samuel A., votes in Congress for fugitive 

slave law, 1850, 187. 
Emancipation, preferred gradual, and views on 

John Brown, 41-42. (See also Negro Suffrage.) 
Emancipation Proclamation, 247-248; nullity in 

form of, though effective as a policy, 512; 

answer to criticism on latter, 512. 
Emerson, Ralph Waldo, teacher, 10, 12; goes to 

hear, 20. 
Enemy's territory, the meaning of the prize 

decision, 4-5, 277-287, 508. See also Prize 

Causes. 
English Contrasts, lecture on, 25. 
Essex Railroad case, 505. 
Ether, discoverer of, 504; tribute to Morton, 

the discoverer of, 510. 
Evarts, Wilham M., early friend, 10; in law 



school with, 13; sets a precedent for the sub- 
sequent San Domingo plan of Pres. Roosevelt, 
340; illuminating note on Halifax Fishery 
award, 345. 

Everett, Edward, early friend, 10; speech at 
50th anniversary in Lexington, 11; Dana's 
address on, 28, 509. 

Excess of Freedom, letter on, to free democracy 
meeting, 506. 

Fee, refusal of, in fugitive slave cases, 210, 507, 
511. 

Federal troops in the South, advocated with- 
drawal of, 1876, 45, 512. 

Fields, Mr. and Mrs. James T., early friends, 10. 

Fillmore, Millard, Pres., U. S., signs fugitive 
slave law, 1850, 164; policy on fugitive slave 
rescue cases, 183-185. 

Fire at sea, burning of the Mastiff, 508. 

First impressions of a sailor, 505. 

Fishery Commission, Halifax, counsel for the U. 
S., 54, 345-426. (See also Halifax Fishery 
Commission and Hague Tribunal.) 

Flag, protection of the, Virginius case, 1874, 511. 

Football at Harvard, 1858, 508. 

Foster, Judge Dwight, references to, in Halifax 
Fishery argument, 354-356, 373, 395, 411. 

Fourth of July address, Faneuil Hall, 1862, 509. 

Fox, Charles James, in ParUament, described by 
"Uncle Edmund," 64. 

Free soil, meeting at Buffalo, 1848, account of, 
149-163, 504; at Boston, 1848, remarks as 
president of, 145-148; at Faneuil Hall, 1848, 
504; at Faneuil Hall, 1850, speech at, 505; at 
Worcester, speech at, 505; platform aban- 
doned by Whigs, 145-148, 505; meeting in 
1850, 505; social and political influence 
against counsel for fugitive slaves or rescuers, 
183-185, 190-192, 195-196, 201-202, 205-208, 
210-211; call for convention, 1855, 507; on 
the removal of Judge Woodbury Davis for 
free soil views, 507. 

Freedom, excess of, letter to free democracy 
meeting, 506. 

Fugitive slave cases, attitude as lawyer in An- 
thony Burns case, 32-33; freedom as against 
money, 42, 212-213; social and political in- 
fluence against counsel for fugitive slaves and 
rescuers, 183-185, 190-192, 195-196, 201-202, 
205-208, 210-211; Sims case, 505; refusal of 
fee in, 210, 507, 511; mistaken identity, Gibson 
case, 166, 214; Freeman case, 214; Lewis 
Hayden, 511. (See also Burns, Anthony; 
Davis, Charles G ; Hayden; Morris; Shad- 
rach.) 

Fugitive Slave law of 1850, immoral and unjust, 
32; opposed its unjust and drastic provisions, 
41-42, 60; support of, the test in federal pa- 
tronage, 60; parody on, as essential to the 
preservation of the Constitution, 164-177; 
trial by jury not allowed in, 167, 170-171, 174, 
187-190; analysis of, in Burns case, 223-226; 
resolutions on, 505. (See also Fugitive Slave 
cases.) 



516 



INDEX 



Gait, Sir Alexander, British Commissioner 
Halifax Fishery Commission, 349-354. 

Geneva Arbitration. (See Alabama Claims.) 

Geneva, N. Y., address before literary societies 
of, 506. 

Gestures, few and not artificial, 7, 462-463; in 
rhetorical training, 511. 

Gibson, Adams, mistaken for fugitive slave, 166, 
214. 

Golden Rocket argument before U. S. Supreme 
Court, 1871, 510. 

Gothic architecture, 504. 

Gould, Prof. B. A., early friend, 10. 

Grand Canal of China, Voyage on, 1859, 512. 

Grasp of War, speech and resolutions on recon- 
struction, 1805, 5, 43, 234-272, 509; powers of 
reconstruction, 243-247, 252-254, 258-259, 
261-264, what ought to be done? 247-248, 
264-265, 268-269; how ought it to be done? 
248, 252, 25^1^258, 263-264, 265-272; laws 
against negroes in southern states, 248-250, 
260-262, 267; negro franchise on educational 
and property qualifications, 250-252, 271; not 
social equality demanded for negro, _ 270- 
271. 

Great Britain's acknowledgment of belligerency 
in Civil War a help to blockade and pri^e, 42, 
237-239, 273-274; connection with in origin 
of the Monroe Doctrine, 296-300; connection 
with French intervention in Mexico, 329-330; 
Venezuelan boundary question, 330-337. 

Great Gravitation Meeting, parody on fugitive 
slave law to preserve the constitution, 164- 
177, 505. 

Greenleaf, Prof. Simon, professor in Harvard 
Law School, 13; true attitude of the lawyer, 
36; resolutions on death of, 507. 

Greenoughs, early friends, 10. 

Grier, Judge Robert C, Dana cleared up doubts 
of, in Prize Causes, 4; writes opinion of U. S. 
Supreme Court in Prize Causes, 239-241; 
praises Dana's argument in Prize Causes, 275; 
meaning of Prize Cause decision, Enemy's 
Territory, 277-287. 

Habeas corpus, on right of, speech in Mass. 
Constl. Conv. 1853, 506. 

Hague Peace Conference, 1907, on the Monroe 
Doctrine, 341-342. 

Hague Tribunal decides war enforced claims as 
preferred, — its effect on the Monroe Doc- 
trine, 1903, 338-339; on meaning of fisheries 
treaty of 1818 in 1910, 353-354. 

Hale, John P., candidate at Buffalo Free Soil 
Convention, 1848, 152, 154, 156-159; speech 
at dinner to, 506; speech on presentation of 
medal to. 506. 

Halifax Fishery Commission, secret history of, 
345-354; argument of R. H. Dana, Jr., before, 
354-355, 513; the fisheries won from the 
French by aid of N. E. colonists, 254-256; 
right of fishing generally, 356, 359; right of 
U. S. "acknowledged" after Revolutionary 
War, 360-361; war of 1812 and treaty of 1818, 
361-362; mackerel fishery first important in 



1827, 363; exclusion from 3-mile limit expen- 
sive to Great Britain, 363-365, 368; headland 
question, 365-366; difficulty in construing 
laws regarding limitations, 366-368; exclusion 
of Canadian fish from U. S. markets, 368; 
difficulty of measuring 3-mile limit from shore 
when at sea, 369-370; 3-mile limit a modern 
doctrine, 370-372; reciprocity treaty of 1854, 
372-374; Treaty of Washington, 1871, 374- 
378; a measure of peace more than money, 
with U. S., 378-379; money value of the 3- 
mile restriction, 379-400, 402-410, 423; value 
to Canada of free sale of fish in the U. S., 400- 
402, 410-418, 419-422; general conclusions, 
418-426. 

Hallett, Benjamin F., a character in Great Grav- 
itation Meeting, a parody on the fugitive slave 
law, 167, 176-177; commissioner in Davis 
rescue case, 178-209. 

Harvard, football at, 1858, 508; resolutions 
presented to Board of Overseers of, 510; re- 
port of Visiting Committee of Overseers, 
1873, 1874, and 1875, 511. 

Haven's letter against Dana, 505. 

Hayden, Lewis, defense of, on charge of rescuing 
fugitive slave, 506; fugitive slave cases and 
R. H. Dana, Jr., 511. 

Hayes, Pres. Rutherford B., withdrawal of fed- 
eral troops from southern states, 46; Tilden 
campaign, 51. 

Higginson, Thomas W., "hterary families" of 
Cambridge, 7; early friend, 10. 

Hillard, George S., early friend, 10; attacks 
Dana, 505-506. 

Hoar, E. Rockwood, early friend, 10; Harvard 
Law School classmate, 13; said that Dana's 
"Episcopalianism" stood in his way, 48; ad- 
dress to Republican members of Mass. legis- 
lature in behalf of, 1874, 511; "subsoiling" or 
prepared candidates, 511; successor of Sum- 
ner, 511. 

Hoar, George Frisbie, early friend, 10; tells of 
Dana's turning a whole convention, by his 
sole eloquence, to Lincoln's support, 48; 
tirades against George William Curtis, 52. 

Holmes, John, " Uncle Edmund" resembles, 8; 
early friend, 10. 

Holmes, Oliver Wendell, early friend, 10. 

Howe, Mrs. Julia Ward, early friend, 10. 

Howe, Dr. S. G., early friend, 10. 

International law, notes to Wheaton, 1866, 510; 
on the Monroe Doctrine, 293-328; Lowell 
Institute lectures on, 510; Virginius case and 
protection of the flag, 511; proposed changes 
in, 1875, 511. 

Introductory Sketch, 1-63. 

Italy, Unity of, pamphlet on, 1871, 510. 

James, Henry, Sr., early friend, 10. 

Japan, letter on, 1860, 508. 

Johnson, Pres. Andrew, reconstruction experi- 
ment, 255-257, 263, 265-266, 271; "bread and 
butter" policy of, Dana resigns on account of, 
459. 



INDEX 



517 



Judges of probate, appointment or election of, 
speech on, at Mass. Constl. Conv. 1853, 507. 

Judiciary, speech on appointment and tenure of, 
at Mass. Constl. Conv. 1853, 5-6, 78-116; 
importance of subject, 80-85; appointment 
for life present system, no need and no de- 
mand for change, 81-85, 113; judges to be as 
free, impartial and independent as the lot of 
humanity will admit, 84; history of, in Eng- 
land, 85-87; trust the people? wise people 
put themselves under "restraint," 87-91, 101- 
lO^i; judiciary more important in a republic 
than in a monarchy, 91; history in the U. S., 
9i; a judiciary dependent on elections, 93; 
laws of N. Y. and Maryland, 93-95; judges in 
the "political mill," 95-96; the tyranny of the 
majorities, 91-101, 103-107; people not al- 
ways right, 105-107; short terms by re- 
appointment, 107-116. 

Juries as judges of the law, speech against, in 
Mass. Constl. Conv. 1853, 506. 

Jury, trial by, not allowed in fugitive slave cases, 
167, 171-174. 

Kalloch, Rev. J. S., defense of, 508. 
King, Preston, Buffalo Conv. of 1848, 152. 
Kinnaird, Lord, tribute to on death of, 1878, 512. 

LaFayette, tour in U. S. 1825, excities patriot- 
ism, 11. 

Latawana, The, admiralty liens and material- 
men, 1875, 511. 

Lawrence, Abbott, 1792-1855, silent on free soil 
issues, 147. 

Lawrence, William Beach, writes in London Law 
Magazine that Prize decision recognized right 
of secession to southern states, 277; suit of, 
against Mr. Dana, as to Notes on WTieaton's 
International Law, after long delay, ends in 
Dana's favor, 62. 

Lea\'itt, Joshua, at Buffalo Free Soil Conv. 
1848, 158-159. 

Legislature, town representation in, speech on, 
in Mass. Constl. Conv. 1853, 506. 

Legislature of Mass., article on, 1868, 510. 

Letters from a Father to a Son, 1-2; note by the 
"Son," 429-477; led by father's love and es- 
teem, 430-435; the whitest soul, 435-436; 
friendship with son, 436-437; no coddling, 
437-438; warning against aristocratic ten- 
dencies in U. S., 439; example in religion, 441- 
447; in family, and romantic love for his wife, 
441-444; tender thoughtfulness, 444; sense of 
fun, 444; conduct as to aristocracy and "kid 
gloves," 441-446; sweet disposition, 446; 
excuse for pubhshing so much in praise of son, 
447; an appeal to the inward vision, 447; let- 
ters: — from Shakespeare's house, 448; to a 
son at St. Paul's School, 448-470; on entering 
college, 470-472; on college boat races, 473, 
485; on journey in Europe, 485-501; on loss of 
English mission, 449-500. 

Lexington, Centennial Oration, 1875, 1, 511; 

and Concord data, 511. 
Liberal party, in Free Soil Conv. 1848, speech, 
150-153. 



Lincoln, Pres. Abraham, his idea of emancipa- 
tion, 41; Dana defends, 43; Dana turns Mass. 
Republican State Conv. to favor, 48; offers 
Dana a portfolio, 63; emancipation by pur- 
chase, 40; at first minimizes Civil War for 
purposes of diplomacy, 240-273; on negro 
franchise, 243; emancipation proclamation, 
247-248; speech on, 1861, 508; speech on, 
before meeting of N. Y. capitalists in 1864, 
509; speech on assassination of, in 1865, 509. 

Liquor question, speech on attitude of parties, 

1867, 510. 

Liquors, intoxicating, act to regulate, report, 

1868, 510. 

Loan of state credit, speech against, in Mass. 

Constl. Conv. 1853, 503. 
Longfellow, Henry W., early friend, 10. 
Loring, Charles G., honorable conduct of law 

cases, 35-36. 
Loring, Judge E. G., against removal of, 60; U. S. 

commissioner in Anthony Burns fugitive slave 

case, 210, 233; remarks against removal of, 

1855, 507; letter on final removal of, 1857 

508. 
Loring, Dr. G. B., a candidate for governor, 

1875, 511. 
Lothrop, Thornton K., on Prize arguments, 

mistakes ground taken by Dana, 236-241. 
Lewisburg, C. B., capture of, by N. E. colonists 

under Pepperell, 355-356. 
Lowell, James Russell, early friend, 10; on 

Tennyson's manners, 27; on learning to speak 

French, 497. 
Lunt, George, U. S. district attorney, conduct 

in trial of rescue cases, 1851, 179, 185, 209; 

"sedulously present" in Burns fugitive slave 

case, 211. 

McCall, Samuel W., secures civil service reform 
plank in Natl. Repub. Conv. 1888, 52. 

McLean, John, candidate in the Buffalo Free 
Soil Conv. 1848, 154. 

Mackenzie, Commander, court martial of, in 
Somers mutiny case, 503. 

Manchester, N. H., speech at, on reasonable 
conciliation with the southern states, 1861, 
508. 

Mandamus, in ecclesiastical cases in America, 
507. 

Marshall, Judge John, story of, that excited 
mirth of Washington, told by "Uncle Ed- 
mund," 67-68. 

Mason, Jeremiah, compared with Rufus Choate, 
290-292. 

Mason and Slidell, capture and return of, Trent 
affair, 1861, Dana's views on, 42-43, 508. 

Mass. Constitutional Convention 1853, debates 
in, 5-6; on the judiciarj , 77-116. (See Judi- 
ciary, speech on.) 

Mastiff, the ship, burned at sea, 508. 

Mexico, in Monroe Doctrine, revolution vs. 
Spain, 296; French intervention in, 329-330, 
340-341. (See also Monroe Doctrine.) 

Middleton, U. S. minister to Russia — Monroe 
Doct., 297. 



518 



INDEX 



Militia, speech on, in Mass. Constl. Conv. 1853, 
50G. 

MiUspaugh, lessee of fugitive slave, Anthony 
Burns, 2^6-230. 

Milton, love of, 26-27. 

Monroe Doctrine, note on, by R. H. Dana Jr., 1, 
295-328; brought to date by R. H. Dana (3d), 
329-31'l; consists of two declarations, — first, 
against new colonization, 296-312, 327; sec- 
ond, against foreign intervention in American 
affairs, 307-308; conclusions, 326-327; sub- 
sequent developments, 329-3-14; French inter- 
vention in Mexico, and MaximiUan, 329-330; 
Venezuelan boundary question — Great Bri- 
tain, British Guiana, Venezuela and the U. S.; 
Pres. Cleveland, Sec. Olney and Lord Salis- 
bury, 330-337; map showing claims of Great 
Britain and Venezuela, and the boundary line 
decreed by the court of arbitration, 338; 
Hayti, — claims by Germany for reparation 
and apology against, 337; Nicaragua, Pres. 
Zelaya, U. S. attitude on the Groce and Can- 
non cases, 1909, 337-338; Venezuela, collection 
of monetary claims against, by Great Britain, 
Germany and Italy, by force, 1902-1903, 338- 
339; decision of the Hague Tribunal in the 
same, 338; preference in favor of war enforced 
claims, and its effect upon the Monroe Doc- 
trine, 338-339; San Domingo protocol, Pres. 
Roosevelt's plan of assignment to the U. S. of 
part of custom duties for benefit of creditor 
nations, 339-311; ratified by U. S. Senate, 341; 
precedents for, 340-341; Hague Peace Con- 
ference of 1907, regulation of use of force to 
coUect debts from nations, 341-342; general 
conclusions from history since 1865, 342-343; 
authorities on the Monroe Doctrine, 343-344. 

Morris, Robert, defense of, in fugitive slave 
rescue case, 506. 

Morse, Samuel F. B., inventor of telegraphy, 
remarks on death of, 510. 

Morton, discoverer of ether, tribute to, 1868, 
510. (See also Ether.) 

Morton, Marcus, Sr. and Jr., in Mass. Constl. 
Conv. 1853, 78. 

Mount Vernon, visit to, in 1844, 504. 

Mystic River improvements, 505. 

Navy, U. S., speech before oflicers and sailors of, 

1865, 510. 
Negro, disqualifications in South before recon- 
struction, 241-242, 248-250, 256, 267. 
Negro equality before the law, Mr. Dana urged, 

but not social or race equality, 242, 270-271. 
Negro franchise, on educational and property 

quaUfications, 5, 61, 234, 241-243, 249-252, 

264, 268-9. 
Negroes, colored citizens of Boston, letter to, 

on Pres. Grant, 1872, 511. 
New York, speech at meeting of capitalists of, 

1864, 509. 
Niphon's crew, 507. 
Northern states not good judges of the negro 

question (?), 270. 
Norton, Charles Eliot, 8; early friend, 10. 



Old laws continued, speech at Mass. Constl. 
Conv. 1853, 507. 

Old South argument 1872, 511. 

Olney, Richard, Sec. of State, in Venezuelan 
boundary case (wh. see), 330-337. 

Onderdank, Bishop, trial of, 504. 

Orr, James Lawrence, governor of S. C, favored 
negro franchise on educational and property 
qualifications, 243. 

Osprey, case of collision and rules at sea, under- 
lying principle discovered by Dana, 4, 39- 
41. 

Otis, Harrison Gray, early friend, 10. 

Palfrey, J. G., early friend, 10. 

Parker, Francis Edward, discusses philosophy 
with, 20; commends Dana's courage, 63. 

Parks, Boston river, 1875, 46-47, 511; public 
address at meeting in favor of, 1876, 512. 

Peace, permanent and honorable, after Civil 
War, 1865. 509. 

Peace, San Domingo protocol, 339; Hague Con- 
ference, 1907, 341-342. 

Pepperell, Sir William, capture of Louisburg, 
355-350, 360. 

Personal Uberty bill, 505. 

Phi Beta Kappa, wit and humor when presiding 
officer at, 58. 

Philadelphia Convention of 1848 described, 153. 

Phillips, Stephen C, at Buffalo Free Soil Conv., 
160. 

Phillips, Wendell, reply to, refusing fee in Burns 
case, 507. (See also 210.) 

Pickman and Silsbee, claimants, argument, 
508. 

Pitt, WilUam, described in English Parliament 
by "Uncle Edmund," 64-65. 

Plurality, elections bj', speech on, in Mass. 
Constl. Conv. 1853, 507. 

PoUtics, American, Points in, 44-46, 512. 

Prescott, state's witness in Davis rescue case, 
confusion of testimony of, 197-199. 

Prescott, W. H., early friend, 10. 

President of the U. S., election of, 44, 512; ascer- 
taining vote for, 512; tenure of office and re- 
eligibility, 44-45, 512. 

Prize Causes, 1, 4-5, 41, 235-241, 273-287; note 
on, 273-277; how question arose, 273-274; a 
dilemma, 274; war a process of coercion, 274; 
blockade and prize necessary part of coercion, 
274; forcible coercion against a de facto nation 
equals war, with all war powers, even if the 
nation exists illegally, 274; argument one of 
the great ones before the U. S. Supreme Court, 
274; difficult task of convincing court, 274; 
Dana's argument based on a large war against 
a great existing power, 274-275; turns recogni- 
tion of belligerency by foreign nations into 
acquiescence of blockade and prize, 274; 
Dana's argument lost, except as a tradition, 
275; decision of the court explained in "Ene- 
my's Territory," 275; "Enemy's territory" a 
technical phrase, but its use does not admit 
that southern states had a right of secession, 
276, and passim to 287; relation to right of 



INDEX 



519 



secession, 273-287; Enemy's territory, 1864, 
(wh. see), 509. 

Probate. (See Judges of probate.) 

Proscription of R. H. Dana, Jr., articles favoring, 
505; by "son of a merchant," 506. 

Providence, R. I., Republican meeting, speech 
at, 1863, 509. 

Pultney, Sir WiOiam, described in English Par- 
liament by " Uncle Edmund," — loses his tem- 
per, 65. 

Qualifications, of voters, speech on, in Mass. 

Constl. Conv. 1853, 507; for freedmen, see 

Negro franchise. 
Quincy, Josiah, remarks on death of, 509. 
Quincys, early friends, 10. 

Rantoul, Robert, in Mass. Constl. Conv. 1853, 78. 

Reasonable conciliation with South, 1861, 508. 

Reconstruction after Civil War, 1, 5, 43, 46, 60- 
61; in Grasp of War speech (wh. see), ^34-272, 
509; Mr. Dana did not approve of extreme 
measures, differed from Sumner and opposed 
'"Carpet Bag" rule, 235. 

Reforms in American politics, 44-46, 512. 

Repeal of the usury laws, speech on, 1, 44, 47, 53, 
117-144. (See Usury Laws.) 

Republican, convention at Worcester, 1855, ad- 
dress, resolutions and speech at, 507; report on 
same to citizens of Cambridge, 507; meeting at 
Cambridge, 1860, speech at, 508; convention 
at Worcester, 1862, report on, 509; ratification 
meeting. Providence, R. I., 1863, speech at, 
509; at Cambridge, 1863, speech at, 509; reso- 
lutions and speech at state conv. at Worcester, 
1868, 510; demonstration in Boston, speech, 
1868, 510; ratification meeting, Faneuil Hall, 
address as president at, 1875, 511; meeting at 
Cambridge, speech at, 1876, 512; at Boston, 
1876, speech at, 512. 

Resumption of specie payments, 512. (See also 
Butler, Benj. F., speeches and campaign 
against.) 

Rhetorical training, article on, 1875, 511. 

Riley, John H., deputy marshal, rescue cases, 
1851, 182, 195-196, 199, 207. 

Roosevelt, Pres. Theodore, peaceful arrange- 
ment to secure debts of delinquent countries 
— Monroe Doctrine — San Domingo pro- 
tocol, 338-341. 

Rush, Richard, minister to England, connection 
with Monroe Doctrine, 297-298. 

Russia and the Monroe Doctrine, 296-299. 

Russian fleet, remarks at dinner to, 509. 

Sailor, first impressions of a, 507. 

Salisbury, Lord, in Venezuelan boundary case 
(wh. see), 330-336. 

San Domingo. (See Monroe Doctrine.) 

Sandwich Islands, letter on,1859-1860, 508. 

Saturday Club, one of the first members, 24. 

Seaman's Friend, book by Dana, 59, 503. 

Seamen, address on behalf of, 508; widow and 
orphans society for, address before, 509; in 
the church, 504; petition for speedy trial of, 504. 



Secession and the Prize Causes, in "Enemy's 
Territory" (wh. see) explained, 273-289. 

Seventeenth of June, speech at Arlington, 1866, 
510. 

Seward, William H., Sec. of State, at first mini- 
mizes Civil War in diplomacy, 240-273; Trent 
affair, 42-43; stops French intervention in 
Mexico, 239-330; sets a precedent for the sub- 
sequent San Domingo plan of Pres. Roosevelt, 
340-341. 

Shadrach, fugitive slave, defense of C. G. Da^-is, 
accused of assisting in rescue of, 178, 209; 
Scott case, 50C. 

Shaw, Chief Justice, on burden of proof in Peter 
York case, 39. 

Sheridan, Gen. Philip H., in charge of army of 
observation, hastens retreat of French from 
Mexico in 1866, 64, 330. 

Sheridan, R. B., in English Parliament, de- 
scribed by "Uncle Edmund," 64. 

Sheriffs subject to the governor, speech in Mass. 
Constl. Conv. 1853, 507. 

Sims, Thomas, fugitive slave, 505. 

Slavery. (See Fugitive Slaves, Negro Franchise 
and Reconstruction.) 

Slidell, John, return of, in Trent affair, 1861, 
42-43; letter on same, 508; social exclusive- 
ness and political democracy of, 446. 

Somers mutiny, 6, 503. 

Sparks, Jared, early friend, 10. 

Spoils system in American politics. (See Civil 
Service Reform.) 

Sprague, Judge Peleg, follows Dana's argument 
in settling collision law, 40-41; tribute to, 509. 

State credit, loan of, speech in Mass. Constl. 
Conv. 1853, 506. 

Story, Judge Joseph, professor in Harvard Law 
School, compliments Dana's argument in moot 
court case, 13; literary anecdoteof, 18; reference 
to, in Burns case, 231; address and speech at 
Story Association, 506; reminiscences of, 506. 

Story, W. W., tells of wit and humor of Dana 
shortly before Dana's death, 62. 

"Subsoiling" or voters vs. prepared candidates, 
1874, 511. 

Sumner, Charles, early friend, 10; on fugitive 
slave law a test for federal patronage and ci\Tl 
servnce reform, 50; Mass. Constl. Conv., 78, 
103; Mr. Dana differs from on reconstruction, 
235; speech on outrage to, 507; remarks on 
death of, 1874, 511; on successor of, to the U. 
S. Senate, 511. 

Sumner, George, early friend, 10. 

Suttle, Col. Charles T., claimant of fugitive slave 
Anthony Burns, 214-233. 

Taney, Chief Justice Roger B., remarks on 

death of, 509. 
Taylor, Gen. Zachary, nominated by WTiigs — 

funeral of Wilmot Pro\aso, 145-148; on 

Buffalo Free Soil Conv. 1848, 151, 162. 
Telegraphy, speech on death of Samuel F. B. 

]Morse, inventor of, 1872, 511. 
Tennyson, fondness for poems of, 27-28; dislike 

of strangers, 27-28. 



520 



INDEX 



Thackeray, views on, 16-17. 

Thompson, chief counsel for Great Britain at 
Halifax Fishery Commission, 1877, hopes for 
permanent settlement, 346; excessive award 
thwarts that hope, S5i. 

Ticknor, George, early friend, 10. 

Town representation in legislature, speech in 
favor of, Mass. Constl. Conv. 1853, 506. 

Trent affair, Dana's views on England's demand 
for return of Mason and Slidell, i-i-iS. 

Trescott, Hon. William Henry, references to, in 
Halifax Fishery argument, 354, 411. 

Two Years Before the Mast, power of description 
in, 6; after return from, 1^; clear style and use 
of short words in, 14; a book intended to re- 
dress sailors' wrongs, 59; pluck shown in voy- 
age round the Horn, 62; editions of, 503. 

United States navy, speech before officers and 
sailors of, 510. 

Usury laws, speech on, illustrates power of origi- 
nal thought and logical arrangement, 5; sound 
judgment in policy regarding, 43-45; unusual 
power of debate in, 47; one of the great 
speeches in the Mass. Legis., 53; speech in full 
on, 117-144, 510; philanthropic and Biblical 
origin of, 118-119, 1'23-125; attempts to regu- 
late prices of commodities, especially necessi- 
ties of life, 119-120; bounties, 120; colonial 
system, 121; protection, 122-123; borrowers 
not always the feeble, 123; Aristotle on, 124; 
Calvin exposes Aristotle's fallacy, 124; neces- 
sity for capital and rent paid for it, 125; not 
"fixed" but "ascertained" the market value 
of money, 126; market value varies by 
changes of supply and demand, 126; difference 
of good and bad securities, 127, 132; can you 
keep down rate? 128; repealed in England, 
1850-1855, 129; no demand to be re-instated 
there, 129-130; Holland's low rates with no 
usury laws, 130; evasions of, 131; effect to 
increase rates by increasing risk when money 
is scarce, 132-133, 135; borrower may sell 
property at ruinous loss, but cannot pay above 
6% for money, 133-134; times of panic, 5% a 
month may be cheapest money ever borrowed, 
134-135; increase of chance of panic by, 135; 
no sliding scale as in corn laws, 135-136; rate 
regularly above legal rate at long periods, 136; 
moral aspect of, 137-138; if borrower enforced 
penalties, could not show face again on 
'change, 138-140; all economists agree in con- 
demning, 140; borrower often powerful and 
rich, and lender the combined savings of the 
poor, 141-142; diffusion of money brings 
competition which favors borrowers, 143-144. 

Van Buren, Pres. Martin, candidate of Buffalo 

Free Soil Conv. 1848, 149-163. 
Venezuelan boundary question, 1895, 330-337; 

forcible collection of claims against 1902-1903, 

338. (See Monroe Doctrine.) 
Vinton, Major, sketch of, 1847, 25, 504. 
Virginias, case of, — right of protection of flag, 

1874, 511. 



Voice from the Main Deck, Introduction to, 507. 
Vote, ascertaining the presidential, 512. 
Voters, qualifications of, speech in Mass. Constl. 
Conv. 1853, 507. (See also Negro franchise.) 
Voyage on the Grand Canal of China, 1860, 512. 

Wallace, Horace Binney, obit, on, 1853, 506. 
War powers and reconstruction, 6, 43, 234-246, 

243-272. (See also "Grasp of War" speech 

and Reconstruction.) 
Washington, D. C, Treaty of, 1871. (See Hali- 
fax Fishery Commission.) 
Washington, George, Dana reads Lives of, 11; 

gradual abolition of slavery favored by, 60; 

sense of tun, and laughter at two stories, by 

"Uncle Edmund," 66-68; Dana's visit to Mt. 

Vernon, 604. 
Washington's Birthday, address on, 1862, 608. 
Webster, Daniel, speeches at 50th anniversary of 

Lexington and Concord arouse patriotism, 11; 

hidden behind dark and impenetrable cloud, 

146; character in Great Gravitation Meeting, 

a parody, 167, 171-175, 290-292. 
W'estern visitors, speech at dinner to, 1865, 509. 
W'heaton's International Law, Dana's note on 

Monroe Doctrine (wh. see), 295-328; notes to, 

in general, 1866, 509. 
Wheatons, the, early friends, 10. 
Whig party in Mass. abandons free soil, 145-148. 

(See references to, in defense of Davis, 178-209; 

in Anthony Burns argument, 210, 233; in Free 

Soil meeting, 149-163; in Great Gravitation 

Meeting, 164, 177.) 
Whitcomb, Charles Thomas, obit, on, 1851, 506. 
Wilde, Judge Samuel S., sketch of, 25; memoir 

of, 1882, 512; sustains Dana's view of burden 

of proof in minority opinion, now the law of 

the land, 39. 
W'illard, President Sidney, early friend, 10. 
Wilmot Prowso abandoned by Whigs, as shown 

in free soil speech at Boston, 1848, 147-148; 

speech at meeting to sustain, 505. 
Wilson, Henry, in Mass. Constl. Conv. 1853, 78; 

on judiciary argument in same, 83-84, 93, 111. 
Winthrop, Robert C, voted for, in 1847, 145; 

appeal to, in account of Buffalo Free Soil 

Conv., 162. 
Winthrop Square, Boston, meeting, speech at, 

1865, 509. 
Withdrawal of federal troops from the South 

advocated in 1876, 45, 512. 
Woods, Leonard, early friend, 10; sketch of, 25; 

article on, 1880, 512. 
Worcester, Mass., speech at, 1850, 605; address 

and resolutions and speech at, 1855, 607; 

report to citizens of Cambridge on, 607. (See 

also Free Soil and Repubhcan.) 

York, Peter, in argument before Supreme Court 
in the case of, Dana seeks the philosophy of 
law, 3; defense from extreme penalty, not 
from punishment, 33; settles the true doctrine 
of the burden of proof, though against the 
wording of the text-books, 37-39. (See Wilde, 
Judge.) 



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